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VERMONT,
December 20,
1999 |
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MASSACHUSETTS
November 18, 2003 |
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NEW YORK,
February 4th,
2005 |
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CALIFORNIA,
March 14, 2005 |
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NEBRASKA,
May 12, 2005 |
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May 12, 2005, msnbc.com Judge strikes down
Nebraska gay marriage ban By Tom Curry National affairs writer MSNBC Updated: 7:24 p.m. ET May 12, 2005 WASHINGTON - In the first time that a federal judge has struck down a state constitutional provision limiting marriage to heterosexual couples, U.S. District Judge Joseph Bataillon on Thursday declared void a provision of the Nebraska constitution that defined marriage as only between a man and a woman and that banned same-sex civil unions, domestic partnerships and other similar relationships. Bataillon declared in his ruling that under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, Nebraska cannot ban same-sex marriages and civil unions. The ruling may call into question similar provisions in other states' constitutions. Nebraska voters enacted the provision five years ago, with 70 percent approving it. Will rekindle debate in Congress The ruling is sure to rekindle debate in Congress over judicial power and may re-energize the forces backing an amendment to the U.S. Constitution to limit marriage to man-woman couples. In a statement, Nebraska Attorney General Jon Bruning said the state would appeal Bataillon's ruling. "Seventy percent of Nebraskans voted for the amendment to define marriage as a union between one man and one woman, and I believe that the citizens of this state have a right to structure their constitution as they see fit," Bruning said. Bataillon, who was nominated to the federal bench by President Clinton in 1997 and unanimously confirmed by the Senate, based his ruling on two Supreme Court decisions, Romer v. Evans in 1996 and Lawrence v. Texas in 2003, with the majority opinion in both written by Justice Anthony Kennedy. Nebraska could not limit the rights of gays and lesbians "to obtain legal protections for themselves or their children in a 'same-sex' relationship 'similar to' marriage," said Bataillon. The Nebraska constitutional provision, he said, "attempts to impose a broad disability on a single group" and the Romer decision bans such disabilities, he said. The Nebraska provision "is at once too broad and too narrow to satisfy its purported purpose of defining marriage, preserving marriage, or fostering procreation and family life," Bataillon wrote. He called it "too narrow" because "it does not address other potential threats to the institution of marriage, such as divorce." And it is "too broad in that it reaches not only same-sex 'marriages,' but many other legitimate associations, arrangements, contracts, benefits and policies." The judge said the amendment's "broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals and people inclined to align with them to promote changes in legislation." GOP senator sees 'threat' Sen. John Cornyn, R-Texas, an advocate of a federal constitutional amendment to define marriage, reacted to Bataillon's ruling by noting that, when the Senate debated the proposed federal marriage amendment last year, "opponents claimed that no state laws were threatened, that no judge had ever ruled against state marriage laws. They claimed that the states and their voter-approved laws defending marriage were under no threat. After today's ruling, they can no longer make that claim." Matt Daniels, president of Alliance for Marriage (AFM), a group that has urged Congress to approve a federal constitutional amendment limiting marriage to heterosexuals, said the debate over marriage "is going to come down to a race between AFM's marriage protection amendment and the federal courts." He predicted that "all of these state marriage amendments are going to be struck down in federal court, they are all going to go the way of Nebraska. The folks filing these lawsuits are taking this to the level of the Constitution, and we have to meet them at that level if the values of most Americans &emdash; and the common-sense understanding of marriage as the union of male and female &emdash; are going to be protected under our laws." More limited interpretation But Amy Miller of the Nebraska American Civil Liberties Union had a far more limited interpretation of the ruling. "This decision doesn't mean that gay people can marry, get a civil union or a domestic partnership, but it guarantees gay people the right to lobby their state lawmakers for those protections," she said. Evan Wolfson, executive director of Freedom to Marry, a group that advocates legal recognition of marriages between gay couples, praised Thursday's ruling. "The court was right to do what courts are supposed to do &emdash; guarantee each of us our right to equal justice under law and equal citizenship in our country and home state," Wolfson said. "Government has no business putting obstacles in the path of people seeking to care for one another under law, and the court correctly found that Nebraska's sweeping anti-gay constitutional amendment offended basic American values of fairness, equality, family protection and access to the government," he added. © 2005 MSNBC Interactive |
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March 14, 2005, Los Angeles Times Judge Voids California's
Gay Marriage Ban SAN FRANCISCO -- Gays and lesbians are entitled to marry under the California Constitution, a judge here ruled today in a decision that opponents to same-sex marriage vowed to appeal. "No rational basis exists for limiting marriage in this state to opposite-sex partners," wrote San Francisco Superior Court Judge Richard Kramer. The decision strikes down a provision of the state's family law that limits marriage to "a man and a woman." But it does not mean that same-sex marriages will resume immediately in the state. Kramer's 27-page ruling will remain tentative at least until March 25, the deadline for both sides to file further arguments. After that, the decision could be put on hold pending further appeals, which opponents of gay marriage already have said they will file. The issue is expected to eventually reach the California Supreme Court, but a ruling by that body might not come until next year. Gov. Arnold Schwarzenegger's office today declined to comment on Kramer's ruling. "It's up to the courts to decide. We have this decision today, and we'll see where this decision ultimately leads us," said Schwarzenegger spokeswoman Margita Thompson. So far, Massachusetts is the only state in which a judicial ruling in favor of same-sex marriage has been made permanent. Trial court judges in New York City and Washington state have made rulings similar to Kramer's. Those are on appeal. Courts in other states have ruled the opposite way. The California case started last year after San Francisco Mayor Gavin Newsom directed city officials to begin issuing marriage licenses to gay couples. The California Supreme Court ruled that Newsom had overstepped the city's authority and that the licenses to more than 4,000 couples were invalid. Meanwhile, the city went to court to seek a ruling that the state law banning gay marriage violated the state Constitution. During a two-day hearing in December before Kramer, lawyers for the state countered that gays and lesbians receive generous domestic partner benefits, and that the tradition of marriage should not be altered. Attorneys for the opponents argued that gays and lesbians should not be allowed to marry because they could not naturally procreate, and that granting them entry would fling open the doors to other illegal unions. Gay marriage advocates drew heavily on the 1948 state Supreme Court decision that overturned the ban on interracial marriage and established a "fundamental right to marry the person of one's choice." In his ruling today agreeing with the city of San Francisco, Kramer rejected the argument that gays and lesbians can be denied the right to marry on the basis of tradition. "Same-sex marriage cannot be prohibited solely because California has always done so before," Kramer wrote. He also insisted that the state law on civil unions, which gives same-sex couples many of the benefits of marriage, was not enough to justify denying them marriage. "The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal," the judge wrote. Kramer also rejected the argument made by some opponents of gay marriage that matrimony was intended for procreation and therefore naturally limited to opposite-sex couples. Many opposite-sex couples marry without ever having children, and gay couples can have children through adoption and medical technology, he noted. "One does not have to be married to procreate, nor does one have to procreate in order to be married," Kramer wrote. Times staff writer Robert Salladay in Sacramento and Jesus Sanchez in Los Angeles contributed to this story. Copyright 2005 Los Angeles Times |
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New York, February
4th, 2005 L. A. Times: THE NATION By Josh Getlin, Times Staff Writer NEW YORK -- A New York judge struck down the state's ban
on gay marriage as unconstitutional Friday, paving the way
for five same-sex couples to wed and opening the door to a
contentious battle over the issue in the Empire State. State Supreme Court Justice Doris Ling-Cohan, however,
stayed her ruling for 30 days -- expecting that there would
be appeals. The Supreme Court is New York's trial-level
court. The lawsuit, filed last year in New York City,
challenged the state law regulating marriage; several
previous challenges failed and are awaiting action from
appellate courts. "Simply put, marriage is viewed by society as the utmost
expression of a couple's commitment and love," Ling-Cohan
wrote in a 62-page opinion. "Plaintiffs may now seek this
ultimate expression through a civil marriage." Gay and heterosexual couples, she said, "are entitled to
the same fundamental right to follow their hearts and
publicly commit to a lifetime partnership with the person of
their choosing. The recognition that this fundamental right
applies equally to same-sex couples cannot legitimately be
said to harm anyone." The New York City Law Department, which argued in the
case that granting same-sex marriage licenses violated the
state constitution, said in a statement Friday: "We are
reviewing the decision thoroughly and considering our
options." Opponents of same-sex marriage criticized the ruling as
misguided, predicting a court battle and potential action by
the state Legislature to prevent gay unions. "I believe it is inconsistent with logic and reason,"
said state Sen. Serphin R. Maltese, a Queens Republican who
has introduced a bill to ban gay marriage. In a statement on his website, Maltese said the ruling
ignored "our Founding Fathers' intention that marriage be an
institution between a man and a woman." Last year, New York Atty. Gen. Eliot Spitzer issued an
opinion that state law banned same-sex marriages; however,
he said the law raised "important constitutional questions"
and could be subject to legal challenge. Spitzer also said
same-sex marriage licenses granted in other states should be
recognized in New York. Friday's ruling -- which for now applies only to New York
City -- is expected to be appealed to the state appellate
court. The case then could make its way to the New York
Court of Appeals, the state's highest court. Resolution
could be months, if not years, away. If the decision is
upheld at that level, it could apply statewide. Lambda Legal Defense Fund, a national gay advocacy group,
hailed Ling-Cohan's decision as a "historic ruling that
delivers the state constitution's promise of equality to all
New Yorkers," said Susan Sommer, Lambda's lead attorney in
the case. At a news conference in New York, one of the couples who
challenged the law -- Jo-Ann Shain and Mary Jo Kennedy --
said the ruling gave them stronger legal rights. The two,
who have been together for 23 years, have a 15-year-old
daughter. "I'm going to sleep better with the legal protection of a
marriage," Kennedy said, adding that she hoped to get a
marriage license with Shain as quickly as possible. The New York ruling follows a Massachusetts high court
decision last year that that state's ban on same-sex
marriage was unconstitutional. Sommer said Lambda had filed similar litigation
challenging laws in New Jersey, and had joined with other
organizations to file appeals of laws in California and
Washington. Decisions are pending in the California and New
Jersey cases, and the Washington state Supreme Court will
hear arguments March 8, Sommer said. "We hope for a similar ruling any day now … in the
California litigation," said Molly McKay, Northern
California associate executive director for Equality
California, in praising the New York decision. The group, McKay added, "hopes to end marriage
discrimination in both the courts and the Legislature this
year." Copyright 2005 Los Angeles Times
In a historic 62-page decision, a New York judge ruled on
Friday that the Empire State marriage laws impermissibly
discriminate against same-sex couples. Justice Doris Ling-Cohan wrote that the liberty interest
at stake for the five plaintiff couples was nothing less
than the fundamental right to choose one's spouse, ruling
that New York City, in turn, would have to present a
compelling reason for restricting marriage to heterosexual
couples. Laws that violate a "fundamental" right, such as the
right to marry, must be narrowly tailored to serve a
compelling state interest. Most courts avoid holding
marriage laws to such a rigorous legal test through the
semantic strategy of announcing that the "right to marry a
same-sex partner" is not fundamental. In Friday's ruling, however, Justice Ling-Cohan resisted
that tactic, forcing the defendant city of New York to come
up with a powerful justification for the ban on same-sex
marriage. The city failed the test, offering the
unconvincing explanation that marriage has traditionally
been defined as a heterosexual institution and, further,
that the city and state must keep their definition of
marriage the same as that of other states (as well as the
federal government) in order to avoid confusion. In concluding her opinion, Ling-Cohan ordered the
definition of marriage in the state's Domestic Relations Law
to be rewritten with gender-neutral terms, allowing same-sex
couples to marry throughout the city's jurisdiction. The
ruling was suspended for 30 days from the entry of judgment
in order to allow the city to appeal if it so desires. The administration of Mayor Bloomberg is under no
obligation to appeal. New York City has long banned both
sexual orientation discrimination and transgender
discrimination. The state of New York, in turn, passed a statewide gay
rights law in 2002. Furthermore, last year Attorney General
Eliot Spitzer signed off on an informal opinion that
indicates New York will recognize same-sex marriages
conducted elsewhere, and expresses concern about whether
continued denial of marriage licenses to same-sex couples
was constitutional. Spitzer had earlier declined to take a stand in this case
against New York City, asking the court not to read anything
into his lack of participation. The challenge to state marriage law in New York City was
brought by Lambda Legal, which hailed the ruling as
"historic." "Our clients got full and fair consideration in this
case, which is all we asked for," said Lambda's Susan
Sommer, who was lead attorney in the case. "The court
obviously looked carefully at the state Constitution and the
rights and protections that same-sex couples were being
denied because they couldn't marry." Meanwhile, another freedom-to-marry suit was filed in
Albany by the American Civil Liberties Union on behalf of 13
same-sex couples. In that case, the lower court ruled
against the plaintiffs, and the ACLU is waiting to hear
whether the state's highest court, the Court of Appeals,
will review the decision. Other pockets of marriage litigation remain active
elsewhere in New York, including in New Paltz, where Mayor
Jason West is facing misdemeanor charges for marrying two
dozen same-sex couples. © 1995-2005 PlanetOut Interactive Services
Ann Rostow, PlanetOut Network
Friday, February 4, 2005 / 03:55 PM
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MASSACHUSETTS Nov. 18, 2003
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FOR IMMEDIATE RELEASE Tuesday, Nov. 18, 2003, from the HRC -- www.hrc.org GAY AND LESBIAN COUPLES IN LONG-TERM, COMMITTED RELATIONSHIPS GET EQUAL PROTECTIONS UNDER LAW IN MASSACHUSETTS State's Highest Court Says Denial of Marriage for Same-Sex Couples is Unconstitutional, Making Massachusetts First State in Nation to Grant Same-Sex Couples the Right to a Civil Marriage WASHINGTON - The Massachusetts Supreme Judicial Court ruled today that same- and opposite-sex couples must be given equal civil marriage rights under the state constitution. The ruling in Goodridge et al. v. Department of Public Health makes the state the first in the nation to grant same-sex couples the right to a civil marriage license. Ruling that civil marriage in Massachusetts means "the voluntary union of two persons as spouses, to the exclusion of all others," the court allowed the Legislature 180 days to change the civil marriage statutes accordingly. "Today, the Massachusetts Supreme Court made history. In the best tradition of our nation, that court ruled that the hard-working, tax-paying gay and lesbian citizens deserve the same rights and protections under law as other citizens of that state," said Elizabeth Birch, executive director of the Human Rights Campaign. "This ruling will never interfere with the right of religious institutions - churches, synagogues and mosques - to determine who will be married within the context of their respective religious faiths. This is about whether gay and lesbian couples in long-term, committed relationships will be afforded the benefits, rights and protections afforded other citizens to best care for their partners and children. This is good for gay couples and it is good for America. "A civil marriage license unlocks the door to hundreds of rights, responsibilities and protections under state law," added Birch. "This ruling simply means that devoted couples in Massachusetts will no longer have to worry about being denied the ability to visit each other in the hospital, or the ability to make medical decisions for their beloved." Key results from the ruling: Same sex couples in Massachusetts who choose to obtain a civil marriage license will now be able to: The Boston-based Gay & Lesbian Advocates & Defenders (GLAD) brought the case on behalf of seven gay and lesbian couples after they were denied civil marriage certificates solely because they were same-sex couples. Four of the couples are raising children together and all have been together for more than six years. "GLAD and Mary Bonauto, its leading lawyer, did an outstanding job arguing this case with professionalism and passion. This tremendous victory would not have been possible without their exemplary efforts," said Birch. During oral arguments in the case, GLAD contended that the right to choose whom a person marries is a fundamental right protected by the Massachusetts Constitution. The group argued that the emotional bonds for same- and opposite-sex couples are identical and so should be the legal benefits that come from civil marriage. GLAD also argued that the stated governmental interests put forth to justify the denial of civil marriage to same-sex couples were unfounded and could not be used as a bar to such an essential right. The Human Rights Campaign signed onto a "friend of the court" brief in Goodridge to support and further explain the case for extending civil marriage rights to same-sex couples under the state constitution. A variety of other civil rights organizations, religious groups, child welfare experts, family and legal historians and others also either signed or filed briefs of their own in favor of extending civil marriage laws to same-sex couples. Domestic partner laws in California, the District of Columbia, Hawaii and Connecticut also allow same-sex couples access to some of the basic benefits and protections afforded to married heterosexual couples. More than 50 cities and counties nationwide offer domestic partner registries where same-sex and sometimes opposite-sex couples can register their relationships. Some of these registries provide same-sex couples with important legal protections, such as the right to visit each other in the hospital, while others simply recognize the relationship without conveying any benefits. "While we wait to see how these marriages are treated, same-sex couples married in Massachusetts should consult an attorney about how to comply with the many federal, state and local laws that affect them and also be sure to secure a safety net of legal documents to protect their families," said Lisa Bennett, director of the HRC Foundation's FamilyNet project. For more information, visit www.hrc.org/familynet. For more information on civil marriage, visit www.millionformarriage.org. The Human Rights Campaign is the largest national lesbian and gay political organization with members throughout the country. It effectively lobbies Congress, provides campaign support and educates the public to ensure that lesbian, gay, bisexual and transgender Americans can be open, honest and safe at home, at work and in the community.
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Here's a cool
article contributed by a pal. Thanks, Mike! --
Jay Holy
Matrimony By Dahlia Lithwick Within nanoseconds of the
Massachusetts Supreme Court's declaration that gay
marriage is protected by the Constitution came
predictions of the end of life as we know it: The
president, speaking from London, warned: "Marriage
is a sacred institution between a man and a woman.
Today's decision of the Massachusetts Supreme
Judicial Court violates this important
principle." "The time is now. If you don't do something
about this, then you cannot in 20 years&emdash;when
you see the American public disintegrating and you
see our enemies overtaking us because we have no
moral will&emdash;you remember that you did
nothing," said Sandy Rios, president of the
Concerned Women for America, to her 1 million radio
listeners. "We must amend the Constitution if we
are to stop a tyrannical judiciary from redefining
marriage to the point of extinction," Focus on the
Family urged in a statement on Tuesday. Extinction, no less. The institution of
marriage&emdash;the one that survived Henry VIII,
Lorena Bobbitt, Nick Lachey and Jessica
Simpson&emdash;is suddenly going to become
extinct? Do you want to know what's destroying the
sanctity of marriage? Phone messages like the ones
we'd get at my old divorce firm in Reno, Nev., left
on Saturday mornings and picked up on Monday:
"Beeep. Hi? My name is Misty and I think I maybe
got married last night. Could someone call me back
and tell me if I could get an annulment? I'm at
Circus Circus? Room&emdash;honey what room is
this&emdash;oh yeah. Room 407. Thank you.
Beeep." It just doesn't get much more sacred than
that. Here's my modest request: If you're going to be
a crusader for the sanctity of marriage&emdash;if
you really believe gay marriage will have some vast
corrosive, viral impact on marriage as a
whole&emdash;here's a brief list of other laws and
policies far more dangerous to the institution. Go
after these first, then pass your constitutional
amendment. 1. Divorce Somewhere between 43 percent and 50 percent of
marriages end in divorce. If you believe gay
marriage is single-handedly eroding a sacred and
ancient institution, you cannot possibly be
pro-divorce. That means any legislation passed in
recent decades making divorce more readily
available&emdash;from no-fault statutes to the
decline of adultery prosecutions&emdash;should also
be subject to bans, popular referendum, and
constitutional amendment. 2. Circus Circus In general, if there is blood in your body and
you are over 18, you can get married, so long as
you're not in love with your cousin. (Although even
that's OK in some states). You can be married to
someone you met at the breakfast buffet. Knowing
her last name is optional. And you can be married
by someone who was McOrdained on the Internet. So
before you lobby to ban gay marriage, you might
want to work to enact laws limiting the sheer
frivolousness of straight marriage. You should be
lobbying for an increase in minimum-age
requirements, for mandatory counseling
pre-marriage, and for statutory waiting periods
before marriages (and divorces) can be
permitted. 3. Birth Control The dissenters in the Massachusetts decision are
of the opinion that the only purpose of marriage is
procreation. They urge that a sound reason for
discriminating against gay couples is that there is
a legitimate state purpose in ensuring, promoting,
and supporting an "optimal social structure for the
bearing and raising of children." If you're going
to take the position that marriage exists solely to
encourage begetting, you need to oppose
childlessness by choice, birth control, living
together, and marriage for the post-menopausal. In
fact, if you're really looking for "optimal" social
structures for childrearing, you need to legislate
against single parents, poor parents, two-career
parents, alcoholic or sick parents, and parents who
(like myself) are afraid of the Baby Einstein
videos. 4. Misc. Here's what's really undermining the sacredness
of modern marriage: soap operas, wedding planning,
longer work days, cuter secretaries, fights over
money, reality TV, low-rise pants, mothers-in-law,
boredom, Victoria's Secret catalogs, going to bed
mad, the billable hour, that stubborn 7 pounds, the
Wiggles, Internet chat rooms, and selfishness. In
fact we should start amending the Constitution to
deal with the Wiggles immediately. Here's why marriage will likely survive last
week's crushing decision out of Massachusetts:
Because despite all the horrors of Section 4,
above, human beings want and deserve a soul mate;
someone to grow old with, someone who thinks our
dopey entry in the New Yorker cartoon competition
is hilarious, and someone to help carry the
shopping bags. Gay couples have asked the state to
explain why such privileges should be denied them
and have yet to receive an answer that is
credible. The decision to make a marriage "sacred" does
not belong to the state&emdash;if the state were in
charge of mandating sacredness in matrimony, we'd
have to pave over both Nevada and Jessica Simpson.
We make marriage sacred by choosing to treat it
that way, one couple at a time. We make marriage a
joke by treating it like a two-week jungle safari.
There is no evidence that gay couples are any more
inclined toward that latter course than
supermodels, rock stars, or that poor spineless
bald man on Who Wants to Marry My Dad? There's good
evidence that most of them will take the commitment
very seriously, as do the rest of us. There will be more "sanctity" in marriage when
we recognize that people of all orientations can
make sacred choices. Good for Massachusetts for
recognizing that truth. click here: A BOSTON GLOBE EDITORIAL in favor of gay marriage Click here
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A BOSTON GLOBE
EDITORIAL For gay marriage 7/8/2003 FOR 200 YEARS American society has drawn a steadily expanding circle of rights: the rights of blacks, then women, and then 18-year-olds to vote; of minorities, women, gays, and the physically disabled to be free from discrimination; of single mothers, adoptive parents, and other nontraditional families to receive government benefits. In the 1967 case Loving v. Virginia, the US Supreme Court ruled that the right to marry could not be restricted by race. In 1993 the Massachusetts Supreme Judicial Court ruled that the right to adopt children could not be denied on the basis of sexual orientation. In 1999 the Vermont Supreme Court found that the benefits of legal marriage could not be withheld from lesbian and gay couples. Now seven same-sex couples have petitioned the SJC for the right to marry under civil law. Their stories of courtship and commitment are so ordinary, and their claim to equal benefits so compelling, that it seems inevitable the circle of rights will eventually widen to enfold them as well. We think the SJC should say that day has come. The Massachusetts Constitution guarantees that ''equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.'' The plaintiffs in the case before the SJC believe that this declaration of rights means that the ''common benefits and protections'' of marriage may not be denied to couples because they are the same gender. For all the legal acrobatics offered by opponents, it is hard to see how anything other than an animus toward gays and lesbians prevents them from obtaining the same ''benefits and protections'' enjoyed by heterosexual couples. The arguments presented by the opposition -- primarily the Massachusetts attorney general, supported by several accompanying briefs -- boil down to three. First, opponents argue that the state has an interest in limiting marriage to heterosexuals because such arrangements better advance the ''main object'' of marriage -- that is, procreation and child-rearing. Aside from the insult implied to all marriages that don't include children, the SJC has already recognized that gay parents can bear, adopt, and raise children, and the Legislature has affirmed that by passing laws about the care of children from such unions. It is a logical contortion to define the primary function of marriage as child-rearing, to allow gay couples to perform that function, then to deny them the right to form a marriage. 'Grievous' violation Opponents also say that denying a marriage license to same-sex couples, while possibly discriminatory, is not a ''sufficiently grievous'' constitutional violation to require the court's interference with the legislative branch. Tell that to Hillary Goodridge, one of the plaintiffs, whose health care proxy document was little help when her partner of 15 years gave birth and she tried to see her newborn daughter in a neonatal intensive care unit. Or David Wilson, who was treated as a stranger by emergency medical personnel when his partner of 13 years suffered a fatal heart attack. Finally, opponents say the Legislature should decide all issues dealing with marriage licenses. But the court is being asked for its opinion on a constitutional matter of fundamental rights -- its proper purview -- and it should deliver such an opinion. The Legislature may be asked, as in Vermont, to sort out the specific remedy. Or the SJC could simply declare that marriages between two individuals of the same gender are legal and valid. It is worth repeating that these are civil marriages. No one is asking any religious organization to sanctify, or even recognize, these unions. A good model for the case before the SJC is Loving v. Virginia, which ruled almost 40 years ago that bans on interracial marriage are unconstitutional. It may be difficult to imagine a time when interracial marriage was considered an abomination by much of society and was specifically outlawed by many states, just as some day it will be hard to imagine that gay couples were once ostracized simply for trying to form stable families. In Loving, the Supreme Court said that constitutional rights must be vindicated despite a long history of laws to the contrary. So too with the right of same-sex couples to marry. A social institution It is true that most people still view marriage as an arrangement between a man and a woman. The traditional definition of marriage as a social institution designed to promote child-bearing and child-rearing is grounded in distinct gender roles that were not just socially but legally imposed for much of American history. But society, and the law, have already greatly expanded the definition of family, and civil marriage has been redefined as a partnership of equals. No doubt marriage between one man and one woman will continue to define the vast majority of unions. But that needn't be the only acceptable definition. In Massachusetts as elsewhere, the everyday reality of same-sex families is far ahead of the law. At Little League games, school plays, and Thanksgiving dinners, gay and lesbian couples and parents are living ordinary lives. They have made moral, emotional, and financial obligations to each other and seek only the recognition and protections a legal marriage affords. ''The desire to marry is grounded in the intangibles of love, an enduring commitment and a shared journey through life,'' reads the plaintiff statement to the SJC. It is time to extend these rights -- and responsibilities -- to all Americans.
This story ran on page A18 of the Boston Globe on 7/8/2003. © Copyright 2003 Globe Newspaper Company. |
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Vermont, December 20, 1999 In Stunning Civil Rights Victory, VT Court Directs State to Give Same-Sex Couples Marriage Benefits FOR IMMEDIATE RELEASE MONTPELIER -- In a defining moment in the struggle for recognition of gay and lesbian relationships, Vermont's Supreme Court today ruled that lesbian and gay couples are entitled all of the same "common benefits and protections" which the law gives to married couples. The finding that the Constitution requires that gay and lesbian couples be given equal treatment under the law "is simply, when all is said and done, a recognition of our common humanity," the court said.In a sweeping decision for four of the justices, the court left it to state lawmakers to determine whether such benefits will come through formal marriage or a system of domestic partnerships. The ruling is final and cannot be appealed to the U.S. Supreme Court. The American Civil Liberties Union, which filed a friend-of-the-court brief in the case, hailed the ruling -- the nation's first -- as a pivotal moment for civil rights in the 90's. "Never mind the millennium, for gay and lesbian couples, a new era began today," said Matthew Coles, Director of the ACLU's national Lesbian and Gay Rights Project, which worked on the case with the ACLU of Vermont. "The court says that in Vermont at least, lesbian and gay couples should get the same treatment the law gives to heterosexual couples. Whether you call that same-sex marriage, domestic partnership or something else, it is full equality, and that is an historic first. "The couples in the case had argued that their inability to get married denied them the protection of more than 300 state laws, which, the Supreme Court acknowledged, include "access to a spouse's medical, life, and disability insurance, hospital visitation and other medical decision making privileges, spousal support, intestate succession, homestead protections, and many other statutory protections." While the justices left it up to the legislature to ensure that same-gender partners are not denied equal benefits, it made clear that the system "must conform with the constitutional imperative to afford all Vermonters the common benefit, protection, and security of the law," the court said. In a concurring and dissenting opinion, Judge Denise R. Johnson said that her colleagues had abdicated this responsibility and should have directed the state to issue marriage licenses to same-sex couples. While the ACLU and other groups have long advocated for the right to marry, Coles said that the next turn in the battle for legal recognition of lesbian and gay relationships will depend on which of the two courses the Court laid out for the Vermont legislature is followed. "If the legislature adopts a fully equal domestic partnership system," Coles said, "we can expect to see campaigns to get similar systems adopted all across the counrty. The response will be largely political. On the other hand," Coles went on, "if the legislature approves same sex marriage, people are likely to marry in Vermont and challenge their home states to recognize the marriages. "To date, 28 states have passed laws banning same-gender marriage. Efforts to recognize same-sex marriages in Alaska and Hawai'i met with disappointment when voters approved state ballot measures to ban same-sex marriage. With today's ruling, Vermont now becomes the first state to require complete equality for same sex relationships. In 1998, the ACLU of Vermont opposed a bill in the Vermont Legislature that would have banned same-sex marriage and prohibited recognition of same-sex marriages performed in other states. The bill did not pass. "We are delighted that the Vermont court recognized that lesbian and gay couples have just as much a right as anyone to the wealth of economic and legal benefits that it confers," said Leslie Williams, Executive Director of the ACLU of Vermont.Coles put the decision in historic perspective. "In 1981, the mayor of San Francisco vetoed a law under which city government would have given equal treatment to domestic partners. It was too far out there. Today, not quite 19 years later, five justices of the Vermont Supreme court say the constitution demands complete equality. The change is astonishing. "The case, Baker v. Vermont, was brought by Beth Robinson and Susan Murray, two Burlington lawyers, along with Gay and Lesbian Advocates and Defenders in Boston.The ACLU's friend-of-the-court brief was authored by ACLU cooperating attorney, Professor David Chambers of White River Junction, Vt., working with Coles, Leslie Cooper and Jennifer Middleton of the ACLU's Lesbian and Gay Rights Project.
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By ROSS SNEYD MONTPELIER, Vt. (AP) - Vermont lawmakers gave final approval Tuesday to a bill that would make the state the first in the nation to give gay and lesbian couples the benefits of marriage.Gov. Howard Dean has promised to sign the bill and may do so by the end of the week. The first civil unions ceremonies could take place after July 1.The final House vote on accepting Senate amendments was 79-68. ``The granting of the equal protections of the law by providing the legal protections, benefits and responsibilities that flow from marriage will not diminish your humanity, your dignity, your freedom or independence,'' House Judiciary Committee Chairman Thomas Little said. ``The continued denial of these legal protections, benefits and responsibilities to a small but vulnerable class of Vermont's citizens diminishes their humanity, dignity, freedom and independence,'' he said. Opponents made one last attempt to derail the bill before the final vote. A Republican representative proposed delaying the vote until Nov. 30, after the fall elections, but the move was defeated 84-63. The bill would create civil unions as a legal framework parallel to marriage. Same-sex couples would be able to go to their town clerk to obtain a civil union license, just as opposite-sex couples obtain marriage licenses. The civil unions then would be certified by a justice of the peace, judge or member of the clergy, just as marriages. Breakups between civil-union partners would be handled like divorces, through Family Court, although they would be called dissolutions. Civil-union partners would gain all of the benefits that the state confers through marriage, such as making medical decisions on behalf of partners or inheritance. The state action, however, has no effect on federal programs, such as Social Security. The biggest Senate change the House had to accept was moving up the date when the first civil unions could be formed, to July 1 instead of two months later under the original House measure. Other Senate amendments dealt largely with language and did not change the substance of the bill. After the Hawaii Supreme Court raised the possibility of same-sex marriages in 1993 - a prospect the state's voters later rejected - 30 states and the federal government passed laws denying recognition to same-sex marriages.
Vermont's new civil unions for gays aren't quite marriage, but sometimes it's hard to tell the difference. By Deb Schwartz As the civil rights movement taught us, social change never comes withoutgreat struggle &endash; not even in progressive Vermont, where legislators passedthe country's first law granting gay and lesbian couples a form of civilunions that looks an awful lot like marriage. But passage of the monumental law was an uphill battle, with lawmakers in the state &endash; better known for Ben and Jerry's and its ice cream flavors inspired by acid-addled hippies and rockers &endash; facing firebrand conservatives,who predicted the "moral rot" would transform the Green Mountain State into a cow-dotted Sodom, and widespread disapproval among voters they will face inNovember. On Tuesday, the Vermont House of Representatives voted 79-68 to approve the Civil Unions Act, granting same-sex couples the 300-plus traditional marriage benefits controlled by the state &endash; including the right to make medical decisions on behalf of partners, inheritance protections and exemption from having to testify against one another. "This is a breathtaking advance," said Mary Bonauto, co-counsel for the three same-sex couples who successfully sued the state in 1997 after being denied marriage licenses. "It's going to make an enormous difference in the lives of people on a day-to-day basis. It goes far beyond any kinds ofprotections we've ever seen for the families of same-sex couples. "Come July, gay couples will be able to obtain civil union licenses fromtown clerks, and then, just as marriages are solemnized, have a justice of the peace, clergy member or judge certify the union. After Jan. 1, coupleswill receive certain tax and insurance privileges from the state. And, if worse comes to worst, couples seeking to dissolve the union will have to take their case to family court, as do married couples seeking a divorce. What Vermont's civil unions won't provide are the federal benefits that come with traditional marriage, including those associated with taxes, Social Security and immigration. Nor will they be recognized outside the state. In enacting the legislation, lawmakers answered the mandate of theVermont Supreme Court, which held unanimously in December that denying gay and lesbian couples the right to marry was discriminatory under the state's constitution. The ruling required state legislators to enact a law that would either permit gay couples to marry or create a parallel system that granted all the marital benefits and protections a state can provide. Faced with widespread opposition to same-sex marriage, lawmakers responded by drafting legislation for civil unions that is far broader in scope than any domestic partnership in the world. As Paula Ettelbrick, family policy director for the National Gay and Lesbian Task Force Policy Institute, pointed out, Vermont has "separated the baggage of marriage &endash; the gendered, historical, cultural and religious baggage &endash; from the benefits and looked at what the government's obligation is. They've taken what has been a very moralized institution and made it into something civil, in political terms." Though gay rights advocates celebrated the legislation, lawmakers on both sides of the issue were uneasy. The debate over same-sex marriages has captivated Vermont for months, stirring tempers and deeply galvanizing the state, which is better known for its bucolic landscape and "good fences make good neighbors" philosophy than acrimony. For weeks, the tiny state house in Montpelier was packed to overflowing as thousands of impassioned voters &endash;decked out in pink stickers (pro-civil unions) and white ribbons (anti) gathered to hear public testimony. At times, angry words turned into angry actions. Several legislators reported that their cars had been vandalized, while others, tired of encountering obscene gestures, removed their legislative license plates. At times, normally civil public meetings descended into shouting matches, where lawmakers favoring the measure were booed into silence. Lawmakers were bombarded with phone calls and letters from opponents of the bill, who asserted that the elected reps were headed for fiery climes if they voted in favor of gay marriage. Likewise, opponents of the measure reported that they were unfairly labeled bigots, homophobes and traitors to their community's values. In a recent interview on Vermont Public Television, Gov. Howard Dean called the issue "the most difficult thing I have had to deal with" in nearly nine years in office. But beyond the predictable rhetoric that civil unions would cause irreparable damage to the state's moral fiber and lure future generations into homosexuality, something unusual happened. In an election year (all of the seats in the legislature are up for grabs in November), many lawmakers ignored the pollsters and voted their consciences. It was a politically bold and dangerous move, since Vermont polls show that only 37 percent support civil unions, with 40 percent opposing them. A mere 13 percent of Vermonters support full-fledged same-sex marriage. "One of my motives for voting for the bill is that our court had found that there was a constitutional right that was being violated," said state Senate Majority Leader Richard McCormack, a Democrat. "That's sort of a no-brainer for a legislator &endash; I've taken an oath of office to uphold the constitution." Republican state Rep. John Edwards, a retired state trooper who serves on the Vermont House Judiciary Committee, is one legislator who never bought the conservative line that gay civil unions would threaten his marriage or lead moral anarchy. Though he voted in favor of unions, he was reluctant at first. Things were moving too quickly. "I wanted more separation between traditional marriage and what we now call civil unions. I wanted a little more definition of the differences maybe." During public hearings, Edwards said, "Gays and lesbians and their families and neighbors made a very compelling argument that gay and lesbian people are part of the fabric of our communities. When I thought back to my youth, I was born and raised on a farm in southern Vermont, we always had in our communities the two bachelors down the road who shared a farm together. We didn't put a label on it and they may or may not have had a sexual relationship, but you thought about this and realized that all people are deserving of equal rights and protections. "And as alternatives were drawn up, Edwards said he sought the help of opponents, asking them to propose a plan that met the court's mandate. "Of course, they never did," he says. State Sen. Mark MacDonald, a Democrat from one of Vermont's most conservative counties, had much to lose by supporting the civil unions. MacDonald's Orange County constituents initially chafed at the court's decision, at allegations that Vermont's laws were discriminatory and at the proposed remedies. "People don't like change," he says. "And they don't like being obliged to think about things they'd prefer not to. We in Vermont pride ourselves on minding our own business and respecting our neighbors' privacy. This law made us reevaluate our tolerance and, to the surprise of many of us, myself included, our lack of tolerance." But it was more than abstract principles that finally swayed MacDonald to cast an aye vote. Even as the Senate seemed poised to approve civil unions, MacDonald was prepared to vote against it. That was until, he says, someone asked how he would explain his vote to his eighth-grade social studies students at Randolph High. "I realized I could tell them I voted against the bill so I could have an easy reelection or I could lie to them - and I don't lie to my students." The court's mandate for legislators to take bold action left little room for compromise. As Dean told the reporters: "I think this bill transcends what we normally think of as politics ... I am not sure there is a compromise that works for people." The absence of a compromise led to a debate driven by what, at times, seemed like caricatured notions of left and right &endash; with civil union proponents dishing out clichéd lines about tolerance, love, understanding and compassion and opponents invoking the Bible and the usual rhetoric about immorality and Sodom and Gomorrah. Rep. George Schiavone, one of the bill's most outspoken opponents, claimed that legislators were "shoving this bill down the throats of our people. Our people are coughing and gagging and choking on this bill." With a nod toward November, Schiavone added that voters would "throw it up and throw us out." Indeed, some Vermonters opposed to civil unions say they feel betrayed by their legislators, and opponents are vowing to capitalize on the discord when the election rolls around. It's also likely that religious conservatives outside Vermont will provide election-time financial support to politicians who opposed civil unions. It's a challenge that sends shivers down the spine of lawmakers who followed the Supreme Court mandate. McCormack feels certain he did the right thing in voting yes, but he doesn't have any illusions about the coming battle. "We have the fight of our life ahead of us," he says. "It would be naive to pretend otherwise. There is a large faction of our population spitting nails over this. They're just angrier than I've ever seen people in my 11 years in office." But McCormack won't be without support. The same activists who pressured the state to pass the gay rights measure say they, too, will turn out in force to back those who stood up for civil unions. "The latest polls are showing that people are pretty closely divided on civil unions and there were a handful of politicians who really took a risk in supporting this. We're going to be standing behind them," said Ann Bumpus, a member of the board of the Vermont Freedom to Marry Task Force. "We get sent here to obey the constitution and represent our constituents and sometimes that creates conflicts," McDonald says. "The last time I got drafted was to go to Vietnam and when I came home it took about a dozen years for my friends and neighbors to realize I'd done what my country wanted me to do and that I'd acquitted myself with honor. I hope this time things will move a little more quickly." • About the writer: Deb Schwartz, former senior editor at OUT, is awriter in New York.
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New Republic, May 8, 2000( http://www.tnr.com ) Why "civil union" isn't marriage. By ANDREW SULLIVAN Perhaps the current moment was inevitable. Around one-third of Americans support civil marriage for gay men and lesbians; another third are strongly opposed; the final third are sympathetic to the difficulties gay couples face but do not approve of gay marriage as such. In the last ten years or so, there has been some movement in these numbers, but not much. The conditions, in short, were ripe for a compromise: a pseudo marital institution, designed specifically for gay couples, that would include most, even all, of the rights and responsibilities of civil marriage but avoid the word itself. And last week, in a historic decision, Vermont gave it to us: a new institution called "civil union." Understandably, many gay rights groups seem ready to declare victory. They have long been uncomfortable with the marriage battle. The platform of this weekend's Millennium March on Washington for gay rights merely refers to security for all kinds of "families." The Human Rights Campaign, the largest homosexual lobbying group, avoids the m-word in almost all its literature. They have probably listened to focus groups that included people like my mother. "That's all very well," she told me in my first discussion with heron the subject, "but can't you call it something other than 'marriage?' "The answer to that question is no. Marriage, under any interpretation of American constitutional law, is among the most basic civil rights. "Separate but equal" was a failed and pernicious policy with regard to race; it will be a failed and pernicious policy with regard to sexual orientation. The many advances of recent years -- the "domestic partnership" laws passed in many cities and states, the generous package of benefits finally granted in Hawaii, the breakthrough last week in Vermont -- should not be thrown out. But neither can they be accepted as a solution, as some straight liberals and gay pragmatists seem to want. In fact, these half-measures, far from undermining the case for complete equality, only sharpen it. For there are no arguments for civil union that do not apply equally to marriage. To endorse one but not the other, to concede the substance of the matter while withholding the name and form of the relationship, is to engage in an act of pure stigmatization. It risks not only perpetuating public discrimination against a group of citizens but adding to the cultural balkanization that already plagues American public life. This essay is not intended for those who believe that homosexual love is sinful or immoral, or who hold that homosexuality is a sickness that can be cured, or who claim that homosexual relationships are inherently dysfunctional; these are not the people pushing the civil-union compromise. With at least a veneer of consistency, these groups want no recognition for gay couples at all. No, the people heralding civil unions are generally sympathetic to homosexual rights. They are the allies that the marriage cause cannot afford to lose. They acknowledge the equal humanity of their gay friends and fellow citizens. But they need to see that supporting civil union while opposing marriage is an incoherent position -- based more on sentiment than on reason, more on prejudice than principle. Liberals, of all people, should resist it. The most common liberal argument for civil union but against marriage was summed up by First Lady Hillary Rodham Clinton in January. "Marriage," she said, when pressed to take a position, "has got historic, religious, and moral content that goes back to the beginning of time, and I think a marriage is as a marriage has always been: between a man and a woman." This statement, which is more elaborate than anything said by Vice President Al Gore or Texas Governor George W. Bush on the topic, is worth examining. It has two aspects. The first is an appeal to the moral, historical, and religious content of an institution unchanged since "the beginning of time." But even a cursory historical review reveals this to be fragile. The institution of civil marriage, like most human institutions, has undergone vast changes over the last two millennia. If marriage were the same today as it has been for 2,000 years, it would be possible to marry a twelve-year-old you had never met, to own a wife as property and dispose of her at will, or to imprison a person who married someone of a different race. And it would be impossible to get a divorce. One might equally say that New York's senators are men and have always been men. Does that mean a woman should never be a senator from New York? Equally, an appeal to the religious content of marriage is irrelevant in this case. No one is proposing that faith communities be required to change their definitions of marriage, unless such a community, like Reform Jewry, decides to do so of its own free will. The question at hand is civil marriage and only civil marriage. In a country where church and state are separate, this is no small distinction. Many churches, for example, forbid divorce. But civil divorce is still legal. Many citizens adhere to no church at all. Should they be required to adhere to a religious teaching in order to be legally married? So, if we accept that religion doesn't govern civil marriage and that civil marriage changes over time, we are left with a more nebulous worry. Why is this change to marriage more drastic than previous ones? This, I think, is what Clinton is getting at in her second point: "I think a marriage is as a marriage has always been: between a man and a woman." On the face of it, this is a statement of the obvious, which is why formulations of this kind have been favorites of those behind "defense of marriage" acts and initiatives across the country. But what, on further reflection, can it possibly mean? There are, I think, several possibilities. The first is that marriage is primarily about procreation. It is an institution fundamentally designed to provide a stable environment for the rearing of children -- and only a man and a woman, as a biological fact, can have their own children within such a marriage. So civil marriage is reserved for heterosexuals for a good, demonstrative reason. The only trouble with this argument is that it ignores the fact that civil marriage is granted automatically to childless couples, sterile couples, couples who marry too late in life to have children, couples who adopt other people's children, and so on. The proportion of marriages that conform to the "ideal"-- two people with biological children in the home -- has been declining for some time. The picture is further complicated by the fact that an increasing number of gay couples, especially women, also have children. Is there some reason a heterosexual couple without children should have the rights and responsibilities of civil marriage but a lesbian couple with biological children from both mothers should not? Not if procreation is your guide. Indeed, if it is, shouldn't we exclude all childless couples from marriage? That, at least, would be coherent. But how would childless heterosexual couples feel about it? They would feel, perhaps, what gay couples now feel, which is that society is diminishing the importance of their relationships by consigning them to a category that seems inferior to the desired social standard. They would resist and protest. They would hardly be satisfied with a new legal relationship called civil union. Another interpretation of Hillary Clinton's comment is that real marriage must involve the unique experience of a man attempting to relate to a woman and vice versa. Some theologians have even argued that a heterosexual relationship is a unique opportunity for personal growth, because understanding a person of the opposite sex is more daunting and enriching than understanding a person of the same sex. So opposite-sex marriage builds character and empathy in a way same-sex marriage does not and therefore deserves greater social encouragement. Opposite-sex marriage fosters the virtues -- communication, empathy, tolerance -- necessary in a liberal democracy. Leave aside the odd idea that heterosexual relationships are more difficult than gay ones. The problem with the character-building argument is that today's marriage law is utterly uninterested in character. There are no legal requirements that a married couple learn from each other, grow together spiritually, or even live together. A random woman can marry a multimillionaire on a Fox TV special and the law will accord that marriage no less validity than a lifelong commitment between Billy Graham and his wife. The courts have upheld an absolutely unrestricted right to marry for deadbeat dads, men with countless divorces behind them, prisoners on death row, even the insane. In all this, we make a distinction between what religious and moral tradition expect of marriage and what civil authorities require to sanction it under law. It may well be that some religious traditions want to preserve marriage for heterosexuals in order to encourage uniquely heterosexual virtues. And they may have good reason to do so. But civil law asks only four questions before handing out a marriage license: Are you an adult; are you already married; are you related to the person you intend to marry; and are you straight? It's that last question that rankles. When civil law already permits the delinquent, the divorced, the imprisoned, the sterile, and the insane to marry, it seems -- how should I put this? --revealing that it draws the line at homosexuals. Indeed, there is no moral reason to support civil unions and not same-sex marriage unless you believe that admitting homosexuals would weaken a vital civil institution. This was the underlying argument for the Defense of Marriage Act (DOMA), which implied that allowing homosexuals to marry constituted an "attack" on the existing institution. Both Gore and Bush take this position. Both Bill and Hillary Clinton have endorsed it. In fact, it is by far the most popular line of argument in the debate. But how, exactly, does the freedom of a gay couple to marry weaken a straight couple's commitment to the same institution? The obvious answer is that since homosexuals are inherently depraved and immoral, allowing them to marry would inevitably spoil, even defame, the institution of marriage. It would wreck the marital neighborhood, so to speak, and fewer people would want to live there. Part of the attraction of marriage for some heterosexual males, the argument goes, is that it confers status. One of the ways it does this is by distinguishing such males from despised homosexuals. If you remove that social status, you further weaken an already beleaguered institution. This argument is rarely made explicitly, but I think it exists in the minds of many who supported the DOMA. One wonders, for example, what Bill Clinton or Newt Gingrich, both conducting or about to conduct extra marital affairs at the time, thought they were achieving by passing the DOMA. But, whatever its rationalization, this particular argument can only be described as an expression of pure animus. To base the prestige of marriage not on its virtues, responsibilities, and joys but on the fact that it keeps gays out is to engage in the crudest demagoguery. As a political matter, to secure the rights of a majority by eviscerating the rights of a minority is the opposite of what a liberal democracy is supposed to be about. It certainly should be inimical to anyone with even a vaguely liberal temperament. Others argue that they base their opposition to gay marriage not on mere prejudice but on reality. Gay men, they argue, are simply incapable of the commitment, monogamy, and responsibility of heterosexuals. They should therefore be excluded as a group from an institution that rests on those virtues. They suspect that if gay marriage were legal, homosexuals would create a new standard of adultery, philandery, and infidelity that would lower the standards for the population as a whole. But, again, this is to set a bar for homosexual marriage that doesn't exist for any other group. The law as it now stands makes no judgments about the capacity of those seeking a marriage license to fulfill its obligations. Perhaps if it did the divorce rate would be lower. But it doesn't, and in a free society it shouldn't. The law understands that different people will have different levels of achievement in marriage. Many will experience divorce; some marriages may not last a week, while others may last a lifetime; still other couples might construct all sorts of personal arrangements to keep their marriages going. But the right to marry does not take any of this into account, and failing marriages and successful marriages are identical in the eyes of the law. Why should this sensible and humane approach work for everyone but homosexuals? Or look at it this way. Even if you concede that gay men -- being men --are, in the aggregate, less likely to live up to the standards of monogamy and commitment that marriage demands, this still suggests a further question: Are they less likely than, say, an insane person? A straight man with multiple divorces behind him? A murderer on death row? A president of the United States? The truth is, these judgments simply cannot be fairly made against a whole group of people. We do not look at, say, the higher divorce and illegitimacy rates among African Americans and conclude that they should have the right to marry taken away from them. In fact, we conclude the opposite: It's precisely because of the high divorce and illegitimacy rates that the institution of marriage is so critical for black America. So why is that argument not applied to homosexuals? This, however, is to concede for the sake of argument something I do not in fact concede. The truth is that there is little evidence that same-sex marriages will be less successful than straight marriages. Because marriage will be a new experience for most gay people, one they have struggled for decades to achieve, its privileges will not be taken for granted. My own bet is that gay marriages may well turn out to be more responsible, serious, and committed than straight ones. Many gay men may not, in practice, want to marry. But those who do will be making a statement in a way no heterosexual couple now can. They will be pioneers. And pioneers are rarely disrespectful of the land they newly occupy. In Denmark, in the decade since Vermont-style partnerships have been legal, gays have had a lower divorce rate than straights. And that does not even take into account the fact that a significant proportion of same-sex marriages in America will likely be between women. If gay men, being men, are less likely to live up to the monogamy of marriage, then gay women, being women, are more likely to be faithful than heterosexual couples. Far from wrecking the neighborhood, gay men and women may help fix it up. There remains the more genuine worry that marriage is such a critical institution that we should tamper with it in any way only with extreme reluctance. This admirable concern seems to me easily the strongest argument against equal marriage rights. But it is a canard that gay men and women are unconcerned about the stability of heterosexual marriage. Most homosexuals were born into such relationships; we know and cherish them. It's precisely because these marriages are the context of most gay lives that homosexuals seek to be a part of them. But the inclusion of gay people is, in fact, a comparatively small change. It will affect no existing heterosexual marriage. It will mean no necessary change in religious teaching. If you calculate that gay men and women amount to about three percent of the population, it's likely they will make up perhaps one or two percent of all future civil marriages. The actual impact will be tiny. Compare it to, say, the establishment in this century of legal divorce. That change potentially affected not one percent but 100 percent of marriages and today transforms one marriage out of two. If any legal change truly represented the "end of marriage," it was forged in Nevada, not Vermont. But if civil union gives homosexuals everything marriage grants heterosexuals, why the fuss? First, because such an arrangement once again legally divides Americans with regard to our central social institution. Like the miscegenation laws, civil union essentially creates a two-tiered system, with one marriage model clearly superior to the other. The benefits may be the same, as they were for black couples, but the segregation is just as profound. One of the greatest merits of contemporary civil marriage as an institution is its civic simplicity. Whatever race you are, whatever religion, whatever your politics or class or profession, marriage is marriage is marriage. It affirms a civil equality that emanates outward into the rest of our society. To carve within it a new, segregated partition is to make the same mistake we made with miscegenation. It is to balkanize one of the most important unifying institutions we still have. It is an illiberal impulse in theory and in practice, and liberals should oppose it. And, second, because marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship. In its rulings, the Supreme Court has found that the right to marry is vested not merely in the Bill of Rights but in the Declaration of Independence itself. In the Court's view, expressed by Chief Justice Earl Warren in Loving v. Virginia in 1967, "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." It is one of the most fundamental rights accorded under the Constitution. Hannah Arendt put it best in her evisceration of miscegenation laws in 1959: "The right to marry whoever one wishes is an elementary human right compared to which 'the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one's skin or color or race' are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to 'life, liberty and the pursuit of happiness' ... and to this category the right to home and marriage unquestionably belongs." Prior even to the right to vote! You can see Arendt's point. Would any heterosexual in America believe he had a right to pursue happiness if he could not marry the person he loved? What would be more objectionable to most people -- to be denied a vote in next November's presidential election or to no longer have legal custody over their child or legal attachment to their wife or husband? Not a close call. In some ways, I think it's because this right is so taken for granted that it still does not compute for some heterosexuals that gay people don't have it. I have been invited to my fair share of weddings. At no point, I think, has it dawned on any of the participants that I was being invited to a ceremony from which I was legally excluded. I have heard no apologies, no excuses, no reassurances that the couple marrying would support my own marriage or my legal right to it. Friends mention their marriages with ease and pleasure without it even occurring to them that they are flaunting a privilege constructed specifically to stigmatize the person they are talking to. They are not bad people; they are not homophobes. Like whites inviting token black guests to functions at all-white country clubs, they think they are extending you an invitation when they are actually demonstrating your exclusion. They just don't get it. And some, of course, never will. There's one more thing. When an extremely basic civil right is involved, it seems to me the burden of proof should lie with those who seek to deny it to a small minority of citizens, not with those who seek to extend it. So far, the opposite has been the case. Those of us who have argued for this basic equality have been asked to prove a million negatives: that the world will not end, that marriage will not collapse, that this reform will not lead to polygamy and incest and bestiality and the fall of Rome. Those who wish to deny it, on the other hand, have been required to utter nothing more substantive than Hillary Clinton's terse, incoherent dismissal. Gore, for example, has still not articulated a persuasive reason for his opposition to gay marriage, beyond a one-sentence affirmation of his own privilege. But surely if civil marriage involves no substantive requirement that adult gay men and women cannot fulfill, if gay love truly is as valid as straight love, and if civil marriage is a deeper constitutional right than the right to vote, then the continued exclusion of gay citizens from civil marriage is a constitutional and political enormity. It is those who defend the status quo who should be required to prove their case beyond even the slightest doubt. They won't have to, of course. The media will congratulate George W. Bush merely for conceding that the gay people supporting his campaign are human beings. Gore will be told by his pollsters that supporting the most basic civil right for homosexuals would be political suicide, and he will surely defer to them. That is politics, and I have learned to expect nothing more from either candidate. But the principle of the matter is another issue. To concede that gay adults are responsible citizens, to concede that there will be no tangible damage to the institution of marriage by their inclusion within it, and then to offer gay men and women a second-class institution called civil union makes no sense. It's a well-meaning surrender to unfounded fear. Liberals of any stripe should see this. The matter is ultimately simple enough. Gay men and women are citizens of this country. After two centuries of invisibility and persecution, they deserve to be recognized as such. |
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