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 Saturday, May 15, 2004
BACKERS OF SSM BAN FIND TEPID RESPONSE IN PEWS: From the New York Times
...Most of the groups supporting the proposed federal constitutional amendment concede that it appears all but dead in Congress for this election year. ... In a last effort to publicize their cause before the impending wave of same-sex marriages, conservative Christian groups are organizing an emergency telecast to churches around the country, bringing African-American clergy members to Washington to lobby the Congressional Black Caucus, and sending members of a group for people who say they are formerly gay to make the rounds of Capitol Hill as well. Still, the opponents of gay marriage say they are puzzling over why such a volatile cultural issue is not spurring more rank-and-file conservative Christians to rise up in support of the amendment. They are especially frustrated, they say, because opinion polls show that a large majority of voters oppose gay marriage. "Our side is basically asleep right now," Matt Daniels, founder of the Alliance for Marriage, which helped draft the proposed amendment, said in an interview last week. The Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, said: "I don't see any traction. The calls aren't coming in and I am not sure why." Some conservatives warn that the Christian leaders rallying behind the amendment may now face a loss of credibility. Their influence with evangelical believers is a subject of keen interest in Washington, in part because the Bush campaign has made ensuring their turnout at the polls a top priority. ... The amendment's backers say that they always knew approval by Congress would be difficult, but that they had expected to get far enough that every candidate in the country would have to take a position on it in the fall. But although the amendment is bogged down, some opponents of same-sex marriage say they see evidence of support for their cause at the state level. ... "I think people are in shock," Senator Cornyn said. "I think people are still having a hard time believing this is real. One of the most common responses I hear is, 'This is just in Massachusetts, why does it concern us in other states?' " Like most of the amendment's supporters, Senator Cornyn is betting that the spread of Massachusetts marriage licenses will drive the issue home. "When people understand that there are same-sex couples that will get married under Massachusetts law and then move to other states and demand that those marriages are recognized by the laws of other states, that is when people will understand this," he said. But Mr. Foreman of the National Gay and Lesbian Task Force suggested that watching gay weddings in Massachusetts would make people more accepting, not less. "The minute you pose the question to somebody, 'How will this hurt you?,' they never have an answer," he said. "As this discussion has gone on and people have seen these images of regular people thrilled to be married, it has dispelled the myth and a lot of the fear around same-sex marriage." Not that the opponents of gay marriage are giving up on the amendment. Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said the amendment's supporters wanted votes in Congress so they could work to replace anyone who voted against it. For months, Dr. Land has told President Bush's political adviser Karl Rove and members of Congress that no issue has upset ordinary evangelical Christians as much as the threat of gay marriage. Last week he stood by that view, but he acknowledged that parishioners around the country might not have voiced their opinions to elected officials as loudly as he had expected. more
KERRY AGAIN OPPOSES SSM: From the Washington Post
With his home state set to begin marrying same-sex couples on Monday, Sen. John F. Kerry (D-Mass.) reiterated his opposition to the idea yesterday, even as he met with gay and lesbian groups to shore up their support. The presumptive Democratic nominee has long opposed gay marriage, favoring instead state-sanctioned civil unions that extend legal protections to gay couples. Yet Kerry has taken several positions on the issue: He voted against the 1996 Defense of Marriage Act, which defined marriage as a union only of a man and woman, saying it amounted to gay-bashing. Kerry has opposed President Bush's call for a constitutional amendment to ban same-sex marriage but said in February that he favors such a ban in Massachusetts. "If the Massachusetts legislature crafts an appropriate amendment that provides for partnership and civil unions, then I would support it, and it would advance the goal of equal protection," he told the Boston Globe. Kerry's careful line is likely to come under increasing scrutiny as Massachusetts becomes the first state to sanction gay marriages, under a ruling by the state's Supreme Judicial Court. Massachusetts's capital, Boston, is also the site of the 2004 Democratic National Convention in late July. Kerry's apparent discomfort with the issue showed at a news conference yesterday at his campaign headquarters in Washington. Asked by a reporter what he would say "on a personal level" to same-sex couples married in his state, Kerry said: "It's not my job to start parceling advice on something personal like that. I personally believe marriage is between a man and a woman, and in extending our rights under the Constitution in a nondiscriminatory manner." ... Gay and lesbian groups, however, said they enthusiastically support Kerry after meeting with him yesterday. more
MASS. COUPLE STRUGGLING WITH ISSUES OF FAMILY AND RELIGION: From the Washington Post
...They are daughters of devout Catholics and said they have been ostracized by many in their families. Their parents will not attend their wedding, and VanBuskirk's mother offered to take her siblings on a vacation to Ireland so they are out of the country on their wedding day. ... The legal and political obstacles to the day were overcome by gay activists and their supporters. But for many same-sex couples, family and religious challenges remain. Many mainstream churches will not conduct same-sex weddings. The Catholic Church, which is also a cultural and political force in Massachusetts, has been among the strongest opponents of the decision by the Massachusetts Supreme Judicial Court that ruled prohibition of gay marriage unconstitutional. ... "I love my daughter, and I always will," Diana's father, Anthony Cutaia, said in a telephone interview from Boca Raton, Fla., where he lives. "But to me, there is no marriage. That's what it comes down to. Whatever exercise they go through is fine, but it's not a marriage." ... Cutaia first proposed to VanBuskirk two years ago. They anticipated having a commitment ceremony and sought out the pre-Cana classes required of all Catholic couples planning to marry. But finding a priest willing to work with a gay couple was hard. ... They joined a gay Catholic community called Dignity Boston, where up to 150 members worship each Sunday in an Evangelist church in Beacon Hill. They pray together almost every night, though these days with Cutaia working normal hours and VanBuskirk on the 4 p.m.-to-midnight shift, they sometimes have to do so over the phone. "One of our favorite things to do is attend Mass together," Cutaia said. "We knew from the start that faith would have to play a major role in our relationship." more
BLACK CLERGY GATHERING TO FIGHT GAY MATRIMONY: From the San Francisco Chronicle
Conservative evangelical groups -- including the Christian men's movement, Promise Keepers -- are mobilizing African American church leaders for a renewed campaign against same-sex marriage. Some of the nation's best-known black clergymen will come together in Washington, D.C., on Monday to denounce homosexual unions -- the same day judges in Massachusetts begin issuing marriage licenses to gay and lesbian couples. The Supreme Court refused Friday to intervene and block clerks from issuing these marriage licenses. The gathering on Capitol Hill will be followed next weekend with a large rally in Texas called "Not on My Watch." ... In San Francisco, a coalition of seven African American pastors called San Francisco Tabernacle Clergy have prepared their own joint statement condemning same-sex marriage and comparisons to the civil rights movement. ... Bishop Donald Green, the pastor of San Francisco Christian Center and chairman of the coalition, said they are not part of the new national campaign organized by the Traditional Values Coalition. But they make similar arguments based on their understanding of the Bible and experience in black churches. "As African American pastors, teachers, counselors and leaders, we see and live with the horrors of a declining society," they state. "Same-sex marriage would serve to advance the decline of marriage and ... family values in the African American community." Joining Green in that statement were the pastors of Bethel AME Church, Missionary Temple CME Church, First AME Zion Church, Jones Memorial United Methodist Church, True Hope Church of God in Christ and Providence Baptist Church. Of course, not all African American church leaders in San Francisco agree. The Rev. Cecil Williams, the longtime leader of Glide Memorial United Methodist Church, said Christian right leaders mobilizing black clergy are "attempting to divert attention from the real issue." "They need to open up to other perspectives," Williams said. "I've said this (the gay rights movement) is a part of the civil rights movement. The issue is to bring out freedom in people's lives." On this issue, however, Williams appears outnumbered by black clergy opposed to same-sex marriage. ... By actively backing the May 22 "Not on My Watch" rally in Arlington, Texas, Fortman gives same-sex marriage opponents the resources of Promise Keepers -- which has brought an estimated 5 million men to stadium-sized rallies over the past 13 years. Meanwhile, another powerful conservative evangelical lobby, the Traditional Values Coalition, has lined up some nationally known African American church leaders for the Monday start of "a state-by-state grassroots effort to pass legislation protecting marriage." Bishop Paul Morton, the presiding bishop of the fast-growing Full Gospel Baptist Church Fellowship; evangelist and former NFL star Darrell Green; and California television evangelist Frederick K.C. Price are among those black Christian luminaries who will call on the Congressional Black Caucus to oppose civil unions for homosexual couples. more Friday, May 14, 2004
LET MASS. BE A TEST CASE FOR GAY UNIONS: Andrew Sullivan
...Please calm down. Will heterosexuals now stop marrying because gay people can? Will the birthrate plummet? Will the sky fall? Of course not. But, even so, we can find out. The beauty of federalism, after all, is that we can test an idea in one state before we try it in any others. In two years' time, the voters of Massachusetts will also be able to take stock and vote to reverse the change, if they so wish. Some members of the religious right claim that the change in Massachusetts will make civil marriage for homosexual couples mandated across the country. But there is absolutely no truth to that claim. The full faith and credit clause of the Constitution does not apply to marriage licenses. Like licenses to practice law or medicine, they are not easily transferable across state lines--and have historically been barred if another state says they violate its public policy. That's how we came to have interracial marriage banned in many states while legal in others for decades. So far, 38 states have passed laws insisting that they will not recognize such civil marriages in Massachusetts. Then there's the Defense of Marriage Act, passed in 1996, which underlines this fact. By denying gay couples any federal benefits, while writing into federal law that Massachusetts' marriages need not be recognized elsewhere, DOMA has shut the door to any nationalization of civil marriage. So why on Earth do we need to go to the drastic step of passing an amendment to the Constitution? The answer is that there is no need at all. ... Moreover, the national view of homosexuality has changed drastically in the last decade or so, and we are now in a period of great flux and debate on the matter. Polls show that the younger generation supports equal marriage rights for gays by a heavy majority. By passing a constitutional amendment now, we will essentially be freezing our current unsettled opinion forever and robbing our children of a choice they have a right to make. It's always worth reiterating, as conservatives often have: The Constitution should be amended only in drastic circumstances and only for properly constitutional matters. The issue of gay marriage belongs in the realm of politics and law, not the Constitution. Besides, the Constitution should be a text that unites us rather than divides us. Everyone knows this issue deeply divides people, sparks deep emotions and feelings on all sides. Settling such a matter by rewriting the document that our founders gave us is an insult to them and to all Americans. Amending it to write discrimination into the document that guarantees equality and freedom is equivalent to writing graffiti on a sacred monument. So let's leave Massachusetts alone. And let the political, civil and judicial process take its long, arduous but essential role in deciding this, state by state, in due course and due time. Right now, we have far more pressing matters to deal with. more
AGAINST MUSGRAVE AMENDMENT: Mike Farris
...I completely agree with the conservatives in Congress and in pro-family organizations that we must amend the Constitution if we want to save our culture. Proposals for nonconstitutional solutions simply will not work. As much as I want to stop same-sex marriage, I actually believe we would be in worse shape if the currently proposed Musgrave Federal Marriage Amendment were ratified. The Musgrave FMA bans same-sex marriage but allows state legislatures to create civil unions if they choose to do so. To understand this, we need to understand the legal definition of civil unions. Only Vermont and California have created these relationships. Same-sex couples must get a license from the state to enter the relationship. The couples become "legal spouses" for all legal purposes. Civil unions are not merely about pension rights or insurance. Civil-union couples have 100 percent of the legal rights of marriage. The Musgrave FMA would be like a constitutional ban on abortion that still allows the states to sanction "termination of pregnancy." We need to protect the substance of marriage, not merely the word marriage. ... There is a place for political pragmatism. But, if we are going to be pragmatic, we need to see what the American public wants, not merely what is popular on Capitol Hill. What does the public think about civil unions and the Musgrave approach? The key to accurate polling is a proper definition of civil unions. A Washington Post poll defines civil unions as giving same-sex couples "the legal rights of married couples in areas such as health insurance, inheritance, and pension coverage." Asked this way, 51 percent of the public supports civil unions. However, a Feb. 5, 2004, news story in the Post had a more accurate definition. Civil unions grant "all the protections, benefits, and obligations of civil marriage," the Post said, citing Vermont law. An independent professional poll asked if voters favored civil unions with this definition: "A civil union shall have all the same benefits, protections, and responsibilities under Vermont law as are granted to spouses in a marriage." This is far closer to the Washington Post news story than the Post's own poll. And it is legally accurate. Asked this way, the public splits 32 percent to 59 percent against civil unions. ... Voters apply the same common sense to the Musgrave FMA. When voters are asked if they would favor a constitutional amendment that would "ban same-sex marriages, and would prevent judges from granting same-sex couples the same rights that married couples have, but it would still allow state legislatures to establish civil unions if they want to," the public strongly rejects this approach. Voters split 37 percent to 56 percent against Musgrave. Born-again Christians reject Musgrave 31 percent to 62 percent. Republican voters split 44 percent to 51 percent against Musgrave. Blacks are 31 percent to 58 percent against Musgrave. Voters who support the idea of amending the Constitution to save marriage are 38 percent to 54 percent against Musgrave. There is not a single demographic group in the nation that gives Musgrave majority approval. ... But let's assume that a miracle happens and Musgrave is ratified. What happens then? States will face incredible pressure to enact civil unions. Same-sex couples will be made spouses in more and more states. They will have 100 percent of the legal rights of marriage. The grassroots that worked so hard to save marriage will ask, "Why did we do all of this work? We didn't save marriage." more
US SUPREME COURT WON'T BLOCK MASS. SSM: From the Associated Press
The Supreme Court refused Friday to block the nation's first state-sanctioned gay marriages from taking place next week. The justices declined without comment to intervene and block clerks from issuing marriage licenses to gay couples in Massachusetts. That state's highest court had ruled in November that the state Constitution allows gay couples to marry, and declared that the process would begin on Monday. The Supreme Court's decision, in an emergency appeal filed Friday by gay marriage opponents, does not address the merits of the claim that the state Supreme Judicial Court overstepped its bounds with the landmark decision. A stay had been sought by a coalition of state lawmakers and conservative activists. ... Mathew Staver, president and general counsel of the Florida-based Liberty Counsel, had told justices in a filing that they were not asking the Supreme Court "to take any position on the highly politicized and personally charged issue of same-sex marriage." Instead, Staver wrote, they wanted the court to consider whether the Massachusetts judges wrongly redefined marriage. That task should be handled by elected legislators, he said. more
FINAL DAYS: David Frum
Barring some unforeseen late-breaking development, the state of Massachusetts will commence issuing same-sex marriage licenses on Monday. About 15 minutes after that, the national debate over same-sex marriage will shift from lively to brawling. ... In recent months, the battered old principle of federalism has benefited from a similar influx of unlooked-for acclaim. People who had little use for federalism when the issue was abortion have suddenly discovered a huge new respect for state sovereignty now that state sovereignty can be invoked to protect Massachusetts' revised version of marriage. I've argued in this space that marriage long ago ceased to be a local institution--that the modern American economy and modern American government cannot cope with the possibility that two people can be married on one stretch of I-95 and unmarried an hour down the road. Now we're going to put the issue to the test. And we're going to test something else too: the good faith of the proponents of same-sex marriage in a single state. A little while ago, I wrote out a list of examples of the difficulties that would be caused by this new insitution of now-you-see-it-now-you-don't matrimony. You can find the complete list here. My friend Eugene Volokh of UCLA law school recently posted an impressively thorough reply to my challenges. His answer, basically, was that from the point of view of the other 49 states and the federal government, these Massachusetts marriages would be completely nugatory and could be ignored at will. Well, we'll see about that. My own prediction is that the forces pressing for same-sex marriage in Massachusetts will not long remain content with Volokh's answers, theoretically credible though they might be. So long as the battle over the Federal Marriage Amendment rages, they'll swear devotion to the doctrines of local self-determination. But those vows will quickly become inoperative. After all, if they really cared so deeply for local self-determination, they would have tried to persuade the Massachusetts legislature to rewrite the law, rather than persuading one of the country's most insulated judiciaries to do the job instead. In the midst of this swirling debate comes a truly remarkable book, Jonathan Rauch's "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America." ... Jonathan appreciates too that marriage will be harmed if the government tries to redefine marriage in ways that shock the conscience of its people. If "legal marriage" deviates from "real marriage"--if for example the US Supreme Court were to announce tomorrow that same-sex couples can "marry" in exactly the same way that men and women can--the court would not change Americans' minds; it would only discredit the institution of marriage. This recognition has made Jonathan one of the few sincere advocates of a federalist approach to the same-sex marriage issue. Most of those who now profess to accept Eugene Volokh's tough restrictions on the validity of Massachusetts' same-sex marriages are quietly preparing to reverse themselves on Tuesday and to begin agitating for full nation-wide judicial recognition. Jonathan is an exception. ... ...But Jonathan’s own vision of marriage explains why his arguments ultimately fail. Jonathan suggests that many liberal Americans already accept same-sex marriage. They treat same-sex couples as "married": and when the government refuses to follow, the government discredits the institution of marriage in the eyes of this sector of heterosexual society and makes cohabitation a more attractive option for them. That's why (he says) same-sex marriage would be "good for America." But it's also true that there is a much larger population of Americans who show no signs of ever accepting the legitimacy of same-sex marriage. What Massachusetts is proposing to do will marginalize them and banish their deepest principles and convictions to the outskirts of American life. If we want to have a national consensus about and in favor of marriage--as Jonathan rightly wants--we have to recognize that the only way we can have it is on the terms that exist today, before the mischievous rulings of the Massachusetts Supreme Judicial Council begin their destructive work. more
AMERICA AND EUROPE: Andrew Sullivan replies to Maggie Gallagher
Maggie Gallagher's latest argument about same-sex marriage is not much more than a splutter. But it does have an error. As part of her attempt to portray equal marriage rights for gays as some kind of path toward an un-American Gomorrah, she says the following: "Europe, which gave us the idea of same-sex marriage, is a dying society, with birthrates 50 percent below replacement." But the first movement for marriage equality was in America in the 1970s. And the first major breakthrough was in America, in Hawaii. And the intellectual arguments in favor were forged in America, not in Europe. And that is how it should be. It is the American constitution that guarantees not some pragmatic device to help gay couples, but the bedrock principle of civil equality and civil rights. This is a quintessentially American reform, which is why it is so appropriate that Massachusetts, the home of the Pilgrims, should be the pioneer. And so fitting that the day for the breakthrough will be the fiftieth anniversary of Brown vs Board of Education. link
GAY LEADERS AREN'T RUSHING TO MARRY: From the Washington Blade
..."I'm obviously paid to be a professional homosexual, but this is a very personal decision," said Foreman, now the executive director of the National Gay & Lesbian Task Force. "I'm not old-fashioned when it comes to many things; I am when it comes to marriage. I believe our relationship will never be seen as equal to others unless we are married." To Foreman, his own marriage demonstrates a commitment to his partner, and, he says, to the vision of Stonewall, "which was to create new ways for people to have family." But for many of the other leaders of large gay and lesbian advocacy groups directly involved in the push for same-sex matrimony, the logic behind the reproductive rights movement in the 1970s applies. They might not ever personally need or want a civil marriage, but they have dedicated their professional lives to ensuring that right for every American. That appears to be the case for the two most prominent gay rights leaders pushing marriage equality. Human Rights Campaign President Cheryl Jacques, a former Massachusetts state senator who introduced marriage legislation before resigning that post, won't return to her native state to wed partner Jennifer Chrisler. Despite her new role as the gay movement's chief lobbyist, the pragmatism Jacques acquired as an attorney has apparently led her to rule out immediate matrimony. Jacques, who regularly mentions her family, including twins Timmy and Tommy, when advocating for marriage equality, declined to explain why marriage wasn’t the right personal step for her family at this time. "Jenn and I feel honored and privileged to be able to have this conversation, but we will remain married in our hearts, not legally," said Jacques, who has retained her Massachusetts residency. Evan Wolfson, of the Freedom to Marry Coalition, one of the prime forces behind the marriage movement as the lead counsel in the landmark Hawaii marriage suit, says his role is "to mind the rest of the store." He has also decided to wait on marrying his boyfriend. Observers of the marriage movement--which acquired legs in the early '90s at a biannual gathering of national gay rights litigators called the Roundtable, but took off with lightning speed after the 2001 filing of Goodridge vs. Department of Public Health--can divide the vested organizations into two categories: the lawyers and the lobbyists. On the whole, and not atypically, the executives of legal advocacy groups will not sign marriage licenses next Monday, while their activist counterparts have expressed desire, if not intention, to officially tie the knot. "I feel like it would be odd to get married and then be in court, arguing and championing the validity of my own marriage license. I want more detachment, even though I couldn't be more immersed and invested in the outcome," said Kate Kendall, the executive director of the San-Francisco-based National Center for Lesbian Rights. Kendall did not marry her partner of 11 years in February and will not on Monday. "Whether actual or perceptual, there was a line on the ground that I didn't feel like stepping across--most judges and plaintiffs want the legal advocate to have a degree of removal from the issue." ... Along the same lines, both Anthony Romero, the gay executive director of the American Civil Liberties Union, and Kevin Cathcart, the head of the Lambda Legal Defense & Education Fund have asserted that they will not wed in Massachusetts, despite long-term relationships. Neither will Matt Coles, the director the ACLU’s Lesbian & Gay Rights project. ... While the lawyers involved in the same-sex marriage movement largely wait for, as Kendall said, "a day when there is not one legal cloud over the validity of marriage," the political activists will actively participate in the privilege for which they fought on the streets. more
MASS. WEDDINGS A LEGAL PANDORA'S BOX: From the Washington Blade
When Massachusetts gay couples start tying the knot legally next week, many experts predict both proponents and opponents of same-sex marriage will file a variety of lawsuits seeking to expand or restrict their newfound marriage rights. At greatest dispute will be federal benefits for gay couples and a constitutional challenge to the federal Defense of Marriage Act, a case that many experts agree is all but inevitable. "I would anticipate that federal DOMA would be challenged by Massachusetts same-gender couples," said Mark D. Mason, treasurer of the Massachusetts Bar Association who also wrote two amicus briefs for Goodridge vs. Department of Public Health, the case that led to the legalization of gay marriage in Massachusetts. "Likewise I anticipate that Massachusetts residents who move to any of the 12 jurisdictions which do not have DOMAs will challenge the legality of their marriage there as well." Andrew Koppelman, professor of law and political science at Northeastern University and author of the "Gay Rights Question in Contemporary American Law," said that the courts are likely to get involved in the federal DOMA. DOMA, Koppelman said, has two main provisions: it stipulates that one state does not have to recognize a gay marriage performed in another state, and it denies federal benefits to gay couples. Koppelman said a court is likely to uphold the first part of DOMA since it is already a part of federal law but the latter, denying benefits to same-sex couples, is unconstitutional because it "singles out gays for disadvantage." Koppelman said that two U.S. Supreme Court cases, 1995's Romer vs. Evans, which struck down Colorado's anti-gay ballot measure banning local governments in Colorado from passing gay civil rights laws, and last year's Lawrence vs. Texas decision that abolished U.S. sodomy laws, buttress his claims. But he expressed concerns that a fusillade of litigation could "backfire" and further inspire opponents to press ahead with a Federal Marriage Amendment that would ban gay marriage outright. Koppelman, who supports same-sex marriage, cautions potential litigants "not to file those lawsuits" because "you will lose and you will generate bad precedent." ... But Cukier envisions a variety of legal scenarios after May 17, notably the portability of a marriage license issued to Massachusetts gay couple. Cukier said that if such a couple vacations in one of the states that expressly prohibits same-sex marriage and one spouse is seriously injured, the other spouse may be denied access to that partner in an intensive care unit. Stemming from such a scenario, Cukier said another likely challenge would be a "loss of consortium" claim if one spouse has a personal injury in a state that prohibits gay marriage and the other spouse wants to file a wrongful death action. Legally speaking, that state is not required to recognize that marriage and gay couples would be barred from filing a loss of consortium claim, Cukier said. One of the main reasons that federal DOMA is likely to be challenged is because Massachusetts gay couples will not be eligible for federal benefits. Evelyn Haralampu, a Boston tax lawyer, said that "there is a lot of gray area" when it comes to same-sex couples receiving federal benefits. While a gay couple cannot file a joint federal tax form, Massachusetts taxes are based on federal taxable income. Haralampu said that before a couple can file state taxes, they must first know what their federal returns are. "Do you use your actual federal taxable income based on an individual or single filing?" Haralampu asks. "Frankly, our legislature has not addressed that issue yet." more
DEMOCRATS DISAVOW CLAIM THEY MAY "CAVE" ON FMA: From the Washington Blade
A charge by the director of the National Gay & Lesbian Task Force that Senate Democrats were backing away from their commitment to oppose a constitutional amendment to ban same-sex marriage drew sharp criticism this week from gay Democratic leaders. ... The flap surfaced when NGLTF executive director Matt Foreman stated in a guest editorial in the Washington Blade on May 7 that a pledge last year by Senate Democratic leader Tom Daschle (D-S.D.) that Senate Democrats would vote to kill the Federal Marriage Amendment may no longer be in effect if the wording of the anti-gay amendment changes to clearly preserve civil unions. "We've since discovered that the Daschle pledge was a classic display of Washington legalese," Foreman wrote in his editorial. "You see, it apparently applied only to 'the' Federal Marriage Amendment as written last year. If the amendment is reworded so it still outlaws same-sex marriage anywhere in the country but leaves the door open to state-based domestic partnerships or civil unions, all bets are off," he wrote. Foreman said he based his assertion on conversations that Task Force officials and supporters in the field have had in recent weeks with key Democratic senators and Senate staff members. Rep. Frank and veteran gay Democratic strategist Jeff Trammell, who was named last month as a campaign adviser to Democratic presidential candidate John Kerry, called Foreman's assertions inaccurate and unfair. The two insist that Senate Democrats are steadfastly opposed to a constitutional amendment to ban same-sex marriage and would help defeat such an amendment in a Senate vote that could come as early as this summer. ... Trammell said he spoke in person with Daschle last week. "He's as solid as a rock," in his opposition to a constitutional ban on same-sex marriage, Trammell said. ... Jacques said HRC has learned that backers of the FMA, including Hatch, were considering introducing wide variations in wording of an FMA in an effort to lure opponents into backing it. ... Foreman said he became greatly concerned when he asked several Senate Democrats to issue a public statement saying they would vote against any and all versions of an FMA that may emerge on the Senate floor this year. "We were not able to get such a statement," he said, leading him to believe Senate Democrats were wavering on the issue. But Trammell, who has worked as a campaign consultant to Senate Democrats in the past, said few senators are willing to issue a blanket statement for or against any legislation. ... Trammell and Jacques said Daschle has told them flatly that he will vote against any form of an FMA and will work hard to persuade his Democratic colleagues to defeat all forms of a constitutional ban on same-sex marriage. "Daschle is from a state where 53 percent of the voters are Republican and only 37 percent are registered Democrats," Trammell said. "Daschle is with us thick or thin," Trammell said, even though Republicans have vowed to work for his defeat on the gay marriage issue. Daschle faces a tight re-election of his own this November. more
GAY MARRIAGE LAWSUIT LED TO BREAKTHROUGH: From the Associated Press
In the spring of 2001, when seven gay couples made a radical demand for the right to marry in Massachusetts, their court case barely registered on the state's political or media radar screen. When a lower court turned them down, the public gave a collective told-you-so. "Nobody thought it was news," said Julie Goodridge, one of the seven couples who sued after being turned away at city hall when they sought marriage licenses. "Nobody thought even remotely it was going to happen." But on Monday--three years after the court battle began, and six months after the state's highest court issued its landmark ruling granting gays the right to marry--it is going to happen. ... Massachusetts was thrust into the center of the nationwide debate on gay marriage when the state Supreme Judicial Court issued its narrow 4-3 ruling in November said that gays have a right under the state constitution to marry. Emboldened in part by the court's strong endorsement of marriage equality, authorities in San Francisco, upstate New York, and Portland, Ore., began issuing marriage licenses as acts of civil disobedience. Talk arose of a federal constitutional ban on gay marriage, which President Bush ultimately endorsed. In a matter of months, civil unions, once considered radical, had become insufficient. ... After more than 30 hours of debate over several months, the Legislature narrowly approved a proposed amendment to the state constitution that would ban gay marriages but legalize Vermont-style civil unions. But the earliest the measure could be put before the voters is November 2006. This drawn-out process for amending the constitution was one of many reasons gay-rights lawyers focused on Massachusetts in 2001 as the next battleground after Vermont. ... "In most of these decisions, the court has delivered a consistent message, and that is that the definition of the family is changing and the idea of the nuclear family is no longer the rock-solid norm," said David Yas, an attorney and editor of Massachusetts Lawyers Weekly. "The court has seemed to go out of its way to recognize that nontraditional families deserve the same recognition as traditional families." more
THINGS TO DO IN D.C.
May 17, 2004 ORGANIZATION: Alliance for Marriage holds a discussion on gay marriage. TIME: 12 noon LOCATION: S-207, U.S. Capitol CONTACT: Lynne Johnson, 703-934-1212
SAN JOSE SUED OVER SSM BENEFITS: From the San Jose Mercury News
A conservative legal group filed suit Thursday against San Jose Mayor Ron Gonzales and the city in an attempt to block extension of city-paid health and welfare benefits to same-sex partners of city employees. The suit asks the Santa Clara County Superior Court to declare that San Jose has no legal authority to recognize same-sex marriage licenses issued elsewhere. It was filed on behalf of the Proposition 22 Legal Defense and Education Fund and Values Advocacy Council by the Alliance Defense Fund based in Scottsdale, Ariz. The group describes itself as a "legal alliance of more than 700 attorneys defending religious liberty." On March 9, the San Jose City Council voted 8-1 to recognize same-sex marriages performed elsewhere to expand city worker benefits already given to heterosexual married couples. Previously, city employees had to pay for same-sex partners' benefits under domestic partnership laws. ... The vote triggered an uproar among members of evangelical churches and has spurred a movement to recall Gonzales. Although San Jose has no power to issue marriage licenses, the vote was part of a groundswell of support that began when San Francisco started issuing thousands of same-sex marriage licenses in February. The California Supreme Court temporarily halted issuing same-sex marriage licenses, with oral arguments scheduled for May 25. Even though the high court will make the ultimate decision, Jordan Lorence, senior counsel for the alliance, said the San Jose issue "needs to be litigated. To allow it to sit there and do nothing would allow the mayor to say, 'I don't have to follow state law.'" ... But City Attorney Rick Doyle, who had not seen the lawsuit, said Thursday that he "never issued any kind of opinion on the legality" of the same-sex marriage licenses. "As for providing benefits, the City Council as an employer was within its rights," he said. more
IN MASS. WEDDING WAVE, THE TRUTH MAY BE VEILED: From the NY Daily News
For Shelley Curnow and Deborah Gar Reichman to make their big wedding legal, they may have to tell a little white lie. "Getting married is a chance to hold up our relationship, to join a larger community," said Curnow, 34, a database administrator. "And we want the marriage license that goes with it." The Carroll Gardens, Brooklyn, couple, like dozens of gay and lesbian couples in New York, plans to head to Massachusetts on Monday, when that state becomes the first in the nation to allow gay marriages. A federal court in Boston turned down a last-ditch effort by conservative groups yesterday to scuttle the nuptials. To get a license, Reichman and Curnow will likely have to fib about where they live--possibly giving the address of the resort where they are getting married May 22. "We had already planned a traditional Jewish wedding. At the time, we thought it was only going to be consecrated by a rabbi," said Reichman, 30, a freelance museum curator. "Now, suddenly, we have a chance to have a license on our wedding day," she said. ... "Out-of-state couples can write down a friend's address, or the inn where they are staying," said Provincetown tourism director Patricia Fitzpatrick, whose town board voted to grant licenses regardless of where a couple lives. "It's a question of basic human rights." But whether a Massachusetts marriage license will hold up in New York is an open question. ... Both their families are thrilled, and older relatives suddenly have familiar words like "fiancée" and "engaged" to use. "My brother would date a woman for two weeks and family friends would ask when he was getting married," Reichman said. "But we weren't asked those questions about our future, until now." more
GAYS ELSEWHERE EYE MARRIAGE MASSACHUSETTS STYLE: From the New York Times
Trey Watts and Darin Moore have never been to Massachusetts. They live in Oklahoma City, where Mr. Watts sells used cars and Mr. Moore is a beauty consultant at a salon. But they plan to marry in Massachusetts this month, one of a first wave of gay couples expecting to do so when same-sex marriages become legal in the state next week. The Oklahomans' plans fly in the face of an edict by Massachusetts' governor, Mitt Romney, who says out-of-state same-sex couples cannot wed here. But Mr. Watts and Mr. Moore are coming anyway, heading to Provincetown, on Cape Cod, one of three Massachusetts communities that have said they will defy the governor and marry out-of-state couples. ... With Massachusetts about to become, on Monday, the first state to legalize same-sex marriages, the treatment of out-of-state couples has become one of the most controversial aspects of this highly controversial issue. And against that shifting and tension-fraught background, thousands of out-of-state couples eager to marry here are trying to decide what to do. Governor Romney has threatened legal action against clerks who issue marriage licenses to out-of-state couples with no intention of moving to Massachusetts; such action could lead to fines of up to $500 or a prison sentence of up to a year. He has also said the state will "refuse to recognize those marriages and inform the parties that the marriage is null and void." Gay-marriage advocates say they will go to court to challenge the governor's directive, which is based on his interpretation of a 1913 law that says the state will not marry couples if they do not intend to move here and if their marriage would be "void" in their home state. The governor, saying that "Massachusetts should not become the Las Vegas of same-sex marriage," has interpreted the law to mean that since no other state performs gay marriages, only Massachusetts same-sex couples are eligible to marry here. more
JUDGE DENIES BID TO STOP GAY MARRIAGES: From the Associated Press
[Unsurprising.] A federal judge Thursday rejected a last-minute bid by conservative groups to block the nation's first state-sanctioned gay marriages from taking place in Massachusetts next week. U.S. District Judge Joseph Tauro said Massachusetts' high court acted within its authority in interpreting the Massachusetts Constitution. The plaintiffs immediately announced they would take their case to the 1st U.S. Circuit Court of Appeals. Tauro heard arguments Wednesday on a petition spearheaded by the Florida-based Liberty Counsel and joined by the Catholic Action League, 11 state lawmakers and conservative legal groups in Boston, Michigan and Mississippi. Mathew Staver, president and general counsel of the Liberty Counsel, had argued that the state's high court overstepped its bounds when it ruled in November that gay marriage should be legal in Massachusetts. He pleaded with the federal judge to "prevent this constitutional train wreck." A state attorney arguing on behalf of the Supreme Judicial Court said that the court based its ruling on the Massachusetts Constitution and that the case did not belong in federal court. The Massachusetts court ruled that city and town clerks could begin issuing marriage licenses to gay couples beginning on Monday. link The ruling is here (PDF)
SSM CONSTITUTIONAL BANS FAIL IN LA., MOVE FORWARD IN N.C.: From 365Gay.com
A proposed amendment to the Louisiana constitution to ban same-sex marriage failed by one vote Wednesday afternoon. The amendment also would have prevented the state from recognizing civil unions or domestic partnerships. But the issue is not dead. The amendment's sponsor, Sen. John Hainkel of New Orleans, can try to round up one more vote for the measure and ask for another vote while the House considers its own version. Louisiana law already bans same-sex marriages but supporters of an amendment say the current law is not enough. Citing the court decision in Massachusetts that will allow same-sex couples to marry next week, backers of the amendment say only by putting a gay marriage ban in the constitution can they be assured that same-sex marriage will never come to the state. The House version of the proposed amendment has cleared committee and has yet to go to the floor for a vote. During hearings, Chris Daigle, director of governmental affairs for Equality Louisiana, told the committee that backers have failed to show how the ban would strengthen families or trim the state's divorce rate. Daigle called the bill election-year posturing pointing out that the measure's sponsor, Rep. Steve Scalise (R-Metairie), is a candidate for the U.S. Congress. "It's wrong and it sets a dangerous precedent," Daigle said of the bill. "Who will be the next group targeted for discrimination?" Meanwhile, in North Carolina, a bill has been introduced in the Senate to amend that's state's constitution. Supporters of gay marriage Wednesday said the proposed constitutional amendment amounts to "codifying into law" biblical interpretation. Among the speakers at a Capitol Hill news conference were several church leaders who support same-sex marriage. ... But the sponsor of the measure, Sen. James Forrester (R-Gaston) says the amendment is necessary to prevent judges from overturning North Carolina's Defense of Marriage Act. more Thursday, May 13, 2004
TRADITIONAL MARRIAGE WILL ALWAYS PREVAIL: Maggie Gallagher
...Take a look at the new unisex marriage licenses that Gov. Romney has decided (without any authorization by the state legislature) to create. Gone is the language of bride and groom, husband and wife, replaced by the new, deeply moving announcement that "Party A" is going to join with "Party B" in something the court insists we call marriage. Gone as well is the whole set of deeply ingrained ideas associated with marriage as the union of opposite sexes: Marriage is more than couple-love; it is the means by which the human race bridges the gender divide, creates mothers and fathers for children, and makes the next generation happen. Advocates of same-sex marriage try to make it sound as bourgeois as possible, but gay marriage is really the triumph of the most radical ideas of the sexual revolution: that gender doesn't matter, children are secondary, expressing your authentic sexual self is more important than, well, practically anything else. For African-Americans, the misuse of the moral capital of the civil rights movement to endorse this new sexual agenda is particularly trying. The Goodridge court decision and its advocates would have us believe that gay marriage, like Brown v. Board of Education, represents moral progress -- the courts stepping in to re-engineer society along better, higher, more just lines. Black America knows better than anyone else the high price children pay for the sexual agendas of adults. The tragedy of the civil rights movement is that just as it achieved the beginning of the end of racial segregation, white educated elites became swept up in the glamour of the sexual revolution. The sexual and family disorganization that followed hit black children particularly hard. The Massachusetts court would have us believe that SSM is the culmination of our American ideals of tolerance, equality and justice. Another way of reading the last 40 years is that once again, white, educated elites are using their power to enforce the moral norms and sexual tastes of affluent white people with graduate degrees. But the victory is likely to be extremely short-lived. Same-sex marriage is not the future. The set of ideas that lead a culture, a religion, a court to endorse same-sex marriage are simply not sustainable over the long haul. Europe, which gave us the idea of same-sex marriage, is a dying society, with birthrates 50 percent below replacement. Every mainstream Protestant sect that has endorsed sexual liberation (including homosexuality) is also dwindling away. ... The reason is really quite simple: Cultures, communities, religions, sects and societies that lose the marriage idea die out. They are replaced by cultures, communities, sects and societies that prioritize, celebrate and embrace the idea of bringing men and women together to make the future happen. That's what marriage means. more
ABOLITION OF MARRIAGE: Eve to David Blankenhorn
Recently David Blankenhorn, of the Institute for American Values and the Family Scholars weblog, has been wrestling with the possibility that "disestablishment"--leaving the definition of marriage to the private sector, and offering only "civil union" contracts--is the best of a lot of really lousy options in the battle over same-sex marriage. He writes, "All of the five possible legal solutions to the issue of same-sex couples -- redefinition of marriage, civil unions, domestic partnerships, federal marriage amendment, and what I am calling disestablishment -- strike me as seriously flawed and likely to be harmful to children. I'm just wondering whether disestablishment might be, in the long run, the least harmful." Later, he adds, "...[T]he proliferation of domestic partnership and civil union schemes is likely to blur the legal differences between marriage and cohabitation to a much greater degree than we currently expect. One advantage to disestablishment is that, instead of this emerging legal mush in which meaningful distinctions would largely evaporate, there would be a clear division between what the law does -- i.e., establish civil unions, which may be where the law is headed anyway, whether people on either side of the SSM debate want it or not -- and what the civil society says marriage is." I've been really surprised that no one seems to have discussed the colossal problems "disestablishment" would pose for many of the other projects of the marriage movement in general, and David in particular. A few of the many examples that leap to mind: marital preferences in adoption law; the Healthy Marriage Initiative; public-school curricula that offer marriage education rather than "relationships" education. All of these projects require that the government take some stand as to what is or is not a marriage. I understand that David is trying to find some way out of the rather hellacious cultural moment we find ourselves in. But I really do not see how disestablishment would make any of his larger cultural projects easier, or even less-awfully-hard. Your thoughts?
ABOLITION OF MARRIAGE: Jonathan Rauch
[Here's an excerpt from Rauch's new book on gay marriage. I think it speaks pretty directly to our current question: Should we "get government out of marriage" and have "civil unions" for all?--Eve] If you are married, a question: How do you know? Seriously. Suppose someone showed up on your doorstep and demanded that you prove you are married. How would you do it? You might say your spouse is the only person you ever sleep with, but what if the two of you no longer have sex, or what if one of you has fooled around? You could say you live together, but so do many people who are not married. You could point to your children, if you have any, but nowadays many unmarried couples have children. You could proclaim your love for your spouse--if you still love your spouse--but that would not prove anything, either. You could ask your friends and neighbors to vouch for you, but how do they know? You could point to the ring on your finger, or go find some wedding pictures, but--well, you get the point. Imagine what a time-consuming nuisance it would be to assemble a dossier to prove that you and your spouse have made a special, lifelong commitment. Much easier to do something else: have the inquirer check the records at the courthouse, which will indicate right away that you are married. If marriage is to be a special promise which brings special status, people need to know who has made the promise and who deserves the status. We need a standard way to know who is married and who isn't. Civil marriage provides that standard. In America, with no established church, only civil marriage can provide it. When you get a marriage license, you do more than pick up a piece of paper. You cross the line into a new relationship not only with your partner but with the state and, through the state, society. There is, of course, that big basket of legal prerogatives which, all of a sudden, you qualify for. Moreover, you have entered a legal relationship which is complicated and difficult to get out of--at least if your spouse is disinclined to make it easy. Moreover, if you and your spouse come into conflict over money or children (among other things), you both give the courts jurisdiction over your personal affairs. That piece of paper from the government turns out not to be just a piece of paper after all. Rather, it signifies that the state now views you in an entirely different way. This is the demarcating function of civil marriage. Nowadays few weddings are alike (just recall some of the matrimonial readings you may have heard--or, maybe better yet, don't). No two marriages are alike, either. And here is the beauty part: Thanks to secular marriage, they do not have to be alike. We can all have our own religions and ceremonies and marriages; we can get married on roller skates while chanting karmic mantras; but by seeking and recognizing state authority for our vows, we signal to each other and to the world that we really are married. The license is more than a handy one-stop way to draw up a complicated contract, although it certainly is that. It is also a universally recognized sign which says: "These people have made the ultimate commitment, so treat them accordingly."
LEGAL CHALLENGES EXPECTED TO ACCELERATE: From the Boston Globe
Within weeks if not days of the first same-sex weddings Monday in Massachusetts, the battle over gay marriage is expected to accelerate across the country as gay and lesbian couples file lawsuits seeking to topple barriers to such marriages in their states. Legal scholars predict that couples who get marriage licenses will soon bring suits seeking legal recognition of their marriages in other states or benefits under federal law that married heterosexuals are eligible for in Massachusetts. Ultimately, the challenges may target the 1996 federal Defense of Marriage Act, which reserves marriage to heterosexual couples, or some 40 state laws modeled on that statute. "If the licenses start being issued on Monday, I would be surprised if some lawsuit somewhere has not been filed by Friday," said Andrew Koppelman, a professor of law and political science at Northwestern University School of Law and author of "The Gay Rights Question in Contemporary American Law." Some lesbians and gays planning weddings are said to be considering potential legal actions already. Some legal specialists say such claims are part of a long-term strategy to make gay marriage legal throughout the United States. But others say the potential litigation simply reflects the reality that, despite legal marriages in Massachusetts, gay couples will still be deprived of certain rights that heterosexuals enjoy. Joyce Kauffman, head of the family law section of the Massachusetts Lesbian and Gay Bar Association, said a federal employee in Massachusetts, whom she would not name, told her she plans to marry her partner, file for joint employee health benefits, and sue the government if it refuses to provide them. Refusal appears likely given that the 1996 Defense of Marriage Act defines marriage as the union of a man and a woman and prohibits federal benefits to same-sex couples. ... Those challenges will probably be waged in local courts over matters such as: a couple moves to another state and is prohibited from filing a joint income tax return; newly married partners are in a car crash outside of Massachusetts, one is seriously injured, and the other is denied hospital visiting privileges; one partner seeks spousal immunity to avoid having to testify against the other at a criminal trial. Although the scholars were divided over how such challenges will fare, they generally agreed that only a handful of states, at most, will follow Massachusetts' cue and legalize same-sex marriage in the next few years, either through litigation or legislation. Those states will probably be ones with liberal traditions and large gay and lesbian communities, such as Oregon or California, the legal scholars said. Koppelman said out-of-state couples who obtain Massachusetts marriage licenses then sue for benefits in their own states are likely to fail. ... Other legal scholars say the matter isn't so clear-cut. Charles Baron, a professor of constitutional law at Boston College Law School, said state courts could find that a defense of marriage law or the 1913 Massachusetts statute discriminates against gays and lesbians and therefore violates the 14th Amendment of the US Constitution, which guarantees equal protection of the law. more
AMERICAN SOCIOLOGICAL ASSOCIATION PROPOSES RESOLUTION OPPOSING FMA
MEMBER RESOLUTION: ASA Statement Against the Proposed Constitutional Amendment Prohibiting Same-Sex Marriage WHEREAS the American Sociological Association (ASA) comprises sociologists and kindred professionals who study, among other things, sex and gender, sexualities, families, children, religion, culture, and systems of inequality and their effects, and WHEREAS the ASA is dedicated to advancing sociology as a scientific discipline and profession serving the public good, and WHEREAS a constitutional amendment defining marriage as between a man and a woman intentionally discriminates against lesbians and gay men as well as their children and other dependents by denying access to the protections, benefits, and responsibilities extended automatically to married couples, and WHEREAS we believe that the official justification for the proposed constitutional amendment is based on prejudice rather than empirical research, and WHEREAS sociological research has repeatedly shown that systems of inequality are detrimental to the public good, BE IT THEREFORE RESOLVED that the American Sociological Association strongly opposes the proposed constitutional amendment defining marriage as between a man and a woman. more
GAY MARRIAGE BEYOND MASSACHUSETTS: From 365Gay.com
Next week same-sex marriage becomes legal in Massachusetts, but two other states may not be far behind. Lawsuits identical to the case that won marriage in Massachusetts are expected to reach high courts in New Jersey and Washington State by the end of 2004. "We're living in historic times that will be looked back on by generations to follow. This isn't just one historic moment in Massachusetts next week -- it's the start of what will be a long period of progress and breakthroughs, with gay couples in other states also winning the right to marry and finally being treated equally under the law," said Kevin Cathcart, Executive Director of Lambda Legal. "Lesbian and gay couples need the protections marriage provides, and they need them where they live and pay their taxes. We are closer than ever to making that a reality in several states." Lambda Legal has been pursuing a state-by-state strategy to win marriage for same-sex couples for the past decade Cathcart said. Currently, Lambda and other groups are suing for marriage on behalf of lesbian and gay couples in New Jersey, New York, Washington State and California, the ACLU and Equality California. All of those cases are in state courts, arguing that denying marriage licenses to same-sex couples violates their rights under state constitutions. And all of those cases are heating up this month, Cathcart said. In New Jersey, Lambda Legal filed appeal papers last week and the case should move quickly to a final ruling. (story) In Washington State, Lambda Legal and Northwest Women's Law Center filed motions for a prompt ruling last week, and attorneys for the state and King County have agreed to move the case quickly. (story) In New York, attorneys for the city are set to respond to Lambda Legal's lawsuit on Monday, just as couples begin marrying in Massachusetts. And in California, hearings are scheduled for later this month and early next month in nearly a half-dozen marriage-related lawsuits that Lambda Legal and the other groups either filed or intervened in on behalf of same-sex couples. more
FEDERAL SSM BAN CHALLENGED IN MIAMI: From the Associated Press
Two sign-language interpreters, the entertainer "Fluffy," two women with medical backgrounds and a gay couple together for 12 years gathered on the courthouse steps Wednesday to be the first to challenge an 8-year-old federal law banning gay marriage. Tired of waiting for approval from the government or gay rights groups, the four gay and lesbian couples filed a lawsuit challenging the constitutionality of a 1996 federal Defense of Marriage Act, which became model legislation for 38 states. The law defines marriage as the union of one man and one woman and allows states to refuse to recognize gay marriages from other states. ... The lawsuit adds a new strategy to the legal campaign against bans on same-sex marriage. For the last decade, gay advocacy groups have been pursuing a state-by-state strategy to win marriage for same-sex couples in state courts only, intentionally avoiding a direct challenge to the federal law. When the planned lawsuit was announced Monday, the gay rights group Lambda Legal expressed misgivings about both its timing and location. more also here Wedne | ||||||||||
