Rites & wrongs

A bill to ban gay marriage brings a controversial civil-rights debate to Massachusetts

by Michael Crowley

Because he is breaking the law, we'll use a pseudonym and call him William. William is a gay man living in the Boston area with his partner, whom we'll call Miguel. They met when William was doing humanitarian work in Miguel's native Chile. It was, William says, "love at first sight."

Chilean society, however, is hardly welcoming of homosexuality, and America is America, so Miguel returned with William to the United States, where the two planned a life together. Were the men a heterosexual couple, the story would end here. They would simply have gotten married, and Miguel automatically would have become a US citizen.

But Miguel does not qualify for American citizenship on his own. And since two men cannot marry in the United States, William and Miguel were left with a choice: return to intolerant Chile, or live an outlaw life in America.

The first option was ruled out. "Being gay in Latin America is just extremely difficult," William explains. "Everything is done in secret. The pressure is just tremendous. The society is so anti-gay."

So they have stayed. Here in America, however, they've been forced to live a different kind of secret life than the one their Chilean neighbors would have demanded.

Miguel was granted only a six-month tourist visa by the US government. The visa expired long ago, but Miguel is still living with William today. "It's a crime," William says, noting that his complicity leaves him just as much a lawbreaker as Miguel. It doesn't make for an easy life. Secrecy forces Miguel to work mostly odd jobs, like dog-walking and window-washing. And there is constant tension.

"I lose a lot of sleep, and I'm very cautious. We live in a dangerous neighborhood, but we don't call the police," William says. "Anyone could talk. My neighbor could report him and immigration would come."

The story of William and Miguel, and those of tens of thousands of other committed gay couples nationwide, are at the heart of the battle to legalize gay marriage in America. Because society won't allow gays to marry, activists say, these couples are denied everything from legal protections -- affecting matters such as health care, Social Security, inheritances, and even funeral arrangements -- to one of the most basic civil rights that society offers. Gay couples, many of them engaged in deep, long-term relationships that in some cases involve children, remain delegitimized and deprived of the countless social and legal benefits that married heterosexuals take for granted.

That may be changing, however. Historic legal challenges have given gay activists hope that 1999 will be a breakthrough year for the gay-marriage cause. At the same time, appalled social conservatives are frantically trying to build new legal defenses to protect their most cherished social institution. Now this battle has spilled into Massachusetts, where the state's first-ever attempt to explicitly outlaw gay marriage has been introduced into the legislature, and where hopeful gay activists are awaiting an imminent Vermont Supreme Court ruling that could make gay marriages possible no more than a few hours' drive from Boston.

The coming debate in Massachusetts is just one of dozens in an ongoing national soul-searching exercise that has ranged from the inspirational and moving to the ugly and hateful. The gay-marriage argument, which revolves around the most fundamental questions of civil rights, family, and morality, comes at a socially fraught moment, a time when conservatives are panicked over a moral crisis and a breakdown in "family values," and when gays and lesbians must confront an enduring culture of hatred that many say made possible last October's murder of 21-year-old Matthew Shepard in Wyoming. And so the arguments on both sides go to core principles. The gay writer and former New Republic editor Andrew Sullivan, for instance, has called nonrecognition of gay marriage "the most profound statement our society can make that homosexual love is not as good as heterosexual love." In a 1996 congressional debate on gay marriage, a little-known freshman Republican from Georgia named Bob Barr, bound for national infamy in the Clinton impeachment trial, roared that "the flames of hedonism, the flames of narcissism, the flames of self-centered morality, are licking at the very foundations of our society, the family unit."

At the close of this century, few Americans are prepared to see men marrying men and women wedding women. But the fight for gay marriage is very real, and the goal is very attainable; optimists say that gay marriage could be legal throughout the country in less than a decade. As with the civil-rights battles of the 1960s, activists say, it will be the courts and not the politicians who lead the way. But it is politics that shape the tenor of the national debate. Enlightened leaders could educate the public on the true merits of the issues. Instead, know-nothing reactionaries have taken the lead, stoking up prejudice and fear. Which brings us to the Massachusetts State House.

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The original bill was a simple piece of legislation, reading in its entirety: "A purported marriage contracted between persons of the same sex shall be neither valid nor recognized in the Commonwealth of Massachusetts."

Perhaps because it wouldn't change existing law -- after all, the state already refuses to recognize gay marriage -- few took note when the bill was filed by state representative John Rogers (D-Norwood) last month. But within the local gay community, whose members clearly understood its context and implications, the bill quickly set off loud alarms.

That context is a case now in the hands of the Vermont Supreme Court, which is considering a lawsuit filed by three same-sex couples who say the state's refusal to allow them to marry denies them the equal protection guaranteed under the state's constitution. The justices, who struck some observers as sympathetic to the plaintiffs during oral arguments, may rule as early as this spring, and no later than the end of the year.

Vermont has become ground zero for gay-marriage advocates who, until recently, had pinned their hopes on similar legal challenges in Hawaii and Alaska. But those efforts ran afoul of legal entanglements and ballot referendums passed in both states last year opposing gay marriage.

A ruling that Vermont's heterosexual definition of marriage constitutes discrimination would make for a social sonic boom over America. That's because the US Constitution requires states to give "full faith and credit" to one another's laws, meaning that if gay marriage is legalized in one state, all 50 would have to honor weddings performed there. Which means you can expect heavy traffic on the northbound highways if the Vermont justices decide for gay marriage.

"There's no question that large numbers of Massachusetts couples, as well as couples from other states, will go to Vermont to get legally married," says Joshua Friedes, chairperson of the Massachusetts Coalition for the Freedom to Marry. "Of course the question still remains, which is whether Massachusetts will recognize a marriage formed in Vermont."

Therein lies the rub. And therein lies the context for John Rogers's proposed bill. The truth is that legal experts disagree on whether one state must honor another's marriage laws. But fearful conservatives, not wanting to take any chances, have spent several months mounting a state-by-state campaign to outlaw gay marriage explicitly Twenty-nine states have already passed such laws, including Florida, Illinois, Virginia, and Maine. Eleven more are considering them, including New York and Texas, and California voters will consider an anti-gay "definition of marriage" ballot initiative in 2000. (Since 1993, seven states have introduced bills to recognize gay marriage, including one now pending in Rhode Island; all have been soundly defeated.) Only now is this anti-gay marriage movement reaching Massachusetts.

It's a movement made possible, and perhaps even encouraged, by Congress's 1996 Defense of Marriage Act (DOMA). The law established the federal government's definition of marriage as a union between a man and a woman only, and it allowed states to pass their own laws refusing recognition of gay marriages performed elsewhere.

If there really is such a thing as a cultural war, DOMA was a kind of Normandy landing for the religious right. Gary Bauer, the outgoing president of the right-wing Family Research Council and a nascent presidential candidate, called DOMA "one of the most crucial pieces of legislation to be considered in this or any year. This is a cultural watershed. Will America move to protect marriage -- the foundation of civilization -- or will America become the first nation to destroy marriage? At stake is nothing less than the future of the nation and the well-being of our children."(Amid all this righteous rhetoric, of course, is more than a little hypocrisy. Since DOMA's passage, five prominent congressional conservatives have admitted to marital infidelities -- including the bill's odious sponsor, Bob Barr.)

Thanks to DOMA, then, state legislatures have been trying to stop gay marriages before they get started. "The problem [Rogers's bill] is attempting to address is whether we give other jurisdictions full faith and credit," says Massachusetts House minority leader Fran Marini (R-Hanson). "So it's not a question of Massachusetts deciding to recognize a homosexual marriage, but rather to be forced into it by the action of some other state, most likely Vermont or Hawaii. This is an action to prevent that."

That action drew a strong reaction earlier this month. On February 11, a coalition of gay activists and sympathetic clergy members rallied at the State House for gay marriage and against Rogers's bill. The event prompted a rare, if brief, discussion of gay marriage in the local media, and even forced Governor Paul Cellucci to take a position.

It wasn't much of a position. Cellucci says he doesn't support Rogers's bill. But he doesn't support gay marriage either. "We need to encourage that basic family unit, and I think that permitting gay marriages would detract from that," Cellucci told reporters. "I think we need to strengthen families. One of the big problems is the fact that fathers aren't involved in the life of their children. The studies have shown that when you have long-term stable marriages where both the mother and father are involved in the life of their kids, that's a lot better for the kids. I just think this would detract from that."

This explanation is a non sequitur. The kinds of studies he's talking about examine the impact of one-parent versus two-parent households; they have nothing to say about straight marriages versus gay ones.

Pressed to elaborate on the governor's logic, Cellucci spokesman Jose Juves would add only that "in an era when so many problems stem from broken homes, it's important to encourage a strong marriage." Juves did reiterate that Cellucci doesn't back Rogers's bill, saying that "it's kind of silly to ban a law that doesn't exist," but he wouldn't say whether Cellucci believes such a law would be necessary if another state began recognizing gay marriage.

That's a markedly different line from the one taken by Cellucci's predecessor, Bill Weld. When Hawaii looked to be on the verge of legalizing same-sex marriage in late 1996, Weld said he believed that the US Constitution obliged Massachusetts and other states to honor the unions of same-sex couples married in Hawaii. "My position as a matter of law," Weld said, "is that that couple would be entitled to all the benefits and burdens of marriage. That's the Constitution. It's the law."

Many legal scholars and even some gay activists disagree with Weld, saying that couples who traveled out of state to get married would have to sue their home state to win legal recognition. This appears to be Cellucci's position. Although last week his spokesman would say only that it's "premature" to speculate on the state-versus-state question, in an interview last fall with the gay weekly newspaper In Newsweekly, Cellucci said that he disagrees with Weld and doesn't believe Massachusetts would have to recognize another state's differing marriage laws.

Even though Cellucci was often said to be even more of a gay-rights supporter than Bill Weld during his years as Weld's lieutenant governor, this isn't the first time he's disappointed the gay community since he became governor in 1997. Last year, for instance, Cellucci didn't support a bill that would have offered "domestic partnership" benefits to same-sex partners of state employees; when another domestic-partnership bill applying only to Boston city employees reached his desk later in the year, he vetoed it.

"There's a very different tone being set by this administration than by the Weld administration," says Sean Cahill, chairman of the Lesbian and Gay Political Alliance of Massachusetts. "As a libertarian, Weld said, 'What's the big deal?' He really didn't seem to have some of the conservative social views that Cellucci has."

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At least Cellucci made his basic views known. The state's other political leaders seem to prefer dodging the thorny issue for as long as possible. House Speaker Thomas Finneran (D-Mattapan), who determines the fate of most legislation on Beacon Hill, didn't return phone calls. Neither did Senate president Tom Birmingham, Attorney General Tom Reilly -- or even John Rogers himself.

Given Cellucci's coolness toward Rogers's bill, it's hard to imagine that a same-sex-marriage ban will make it through the legislature, much less become law. Though a devout Catholic like Finneran isn't a likely supporter of gay marriage -- particularly given the resistance he put up to Boston's domestic-partnership bill last year -- the Speaker is more prone to block legislation he doesn't like than to ram through controversial bills. As a reliable liberal, Birmingham surely wouldn't cheerlead a same-sex-marriage ban. But his silence on the issue so far is surprising, and perhaps a little disappointing to gay activists looking for an influential political leader to take their side.

That said, a same-sex-marriage ban does have some vigorous supporters. Since the passage of DOMA, national religious-right organizations such as the Family Research Council, the Christian Coalition, and Focus on the Family have been helping their local affiliates to push gay-marriage bans around the nation. Here in Massachusetts, for instance, Rogers's bill looks to be the work of the Massachusetts Family Institute (MFI), a Newton-based religious-right group affiliated with Christian fundamentalist Reverend James Dobson's Focus on the Family -- a smaller but more dogmatic version of the Christian Coalition.

Neither Rogers nor the MFI returned the Phoenix's calls. But the link was established when a Rogers aide told the gay weekly newspaper Bay Windows that the marriage bill had been filed at the MFI's request, something the group's president didn't deny when reached by that paper.

The House chairman of the legislature's Taxation Committee and a member of Tom Finneran's leadership team, Rogers has a moderate voting record overall. But he is a Roman Catholic and a clear social conservative. One activist recalls that when gay leaders sought the repeal of Massachusetts's archaic sex laws last year, Rogers was unsympathetic, even suggesting in one hearing that the state consider requiring adulterers to seek counseling.

Perhaps more troubling to gay activists, Rogers seems to be something of a go-to man for Finneran. Last month, for instance, Rogers was assumed to be acting as a proxy for the Speaker when he introduced a bill to grant pay raises to several of Finneran's House allies, and Finneran designated Rogers as his point man on an adoption-reform bill that the Speaker considers a top priority. If Rogers is a Finneran minion, it suggests that his bill might have the powerful Speaker's blessing.

Even so, gay activists -- who have scheduled another rally at the State House for March 24 -- don't seem unduly concerned that Rogers's bill will pass (although they are warily awaiting a revised version that Rogers, for reasons unclear, has been preparing to substitute for the original). More than anything, they are grimly bracing for a potentially unpleasant debate.

"We're taking it very seriously," says Sean Cahill. "Even if the bill doesn't get signed into law, it still has the potential to evoke a very nasty and destructive and counterproductive debate about this issue."

Adds state representative Jarrett Barrios (D-Cambridge), who is gay: "This bill as drafted is only about kicking gay people in the teeth. It is already against the law for gay and lesbian people to get married in Massachusetts."

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But why? Are there really legitimate reasons for maintaining the male-female foundation of marriage? Or is the exclusion of gays and lesbians pure discrimination?

Take what is probably the main conservative argument against gay marriage, and one advanced last fall by the state of Vermont: that marriage is an institution devoted to procreation and parenthood. It is defined by the couple's ability to create a family, and the creation of a strong and stable family is good for society. This seems more or less to be Paul Cellucci's argument.

Yet consider its logical extension. If marriage depends on childbearing, why do we grant marriage licenses to infertile couples? To senior citizens? To people who simply hate kids?

The fact that we do demonstrates the obvious truth that marriage is about more than procreation. Heterosexuals who won't have children are allowed to marry because there are other good reasons why society might value a legally recognized lifelong partnership between two people. Marriage tends to stabilize people, to give them a formalized commitment that grounds them personally and professionally. Marriage also creates a healthy interdependence between people, allowing them to share financial, emotional, and medical burdens. Children or not, it's those elements of stability that help build healthy communities. This is why Cellucci's argument falls apart. Marriage would surely strengthen the bonds between gay couples, many of whom have legally adopted children. Gay marriage would strengthen, not weaken, the institution of the family.

Conservatives ask where, once marriage starts being redefined, society will draw the line. Why not allow polygamy? Or even allow people to marry their pets? As the conservative commentator Charles Krauthammer once asked in Time magazine: "[I]f marriage is redefined to include two men in love, on what possible principled grounds can it be denied to three men in love?"

The question is as unfairly alarmist as it sounds. "[I]t's a completely separate question whether the government should extend the definition of marriage (same-sex or different-sex) to include more than one spouse," Andrew Sullivan has argued in the New Republic, "or whether, in the existing institution between two unrelated adults, the government should continue to discriminate between its citizens."

What's more, gay-marriage backers argue that the institution has survived major revisions before. After all, it was once illegal for blacks to marry whites; and wives were once considered the property of their husbands. Marriage survived the abolition of both customs.

Intellectual arguments aside, however, for many gays and lesbians the right to marry has more-practical implications. There are 1049 federal laws tailored to married couples, bringing myriad benefits that are denied to gay couples like William and Miguel. Marriage brings tax breaks, Social Security benefits, joint ownership of property, and next-of-kin status that affects everything from inheritances to funeral arrangements.

In times of sickness or death, the powerlessness of an unmarried partner can be crushing. Some hospitals have prevented gay men and lesbians from being at a critically ill partner's bedside because they had no legal relationship to the patient. The worst horror stories are told by those gays and lesbians who endured a partner's death, only to watch helplessly as hostile family members excluded them from the funeral and challenged the deceased partner's will.

Ken Kirkey, a long-time Boston-area resident whose partner of five years, Mark, died in November, remembers that the possibility of such scenarios was always on his mind. "I recall driving to the hospital when Mark was in pretty grave health," Kirkey says, "and wondering if somehow when I got there I might not be allowed to see him. That's the kind of thing that people really need to ask themselves when they look at this issue -- do they really want someone who loves someone else at an extraordinary level to have to deal with this kind of thing in a situation that is already excruciatingly difficult?"

Kirkey is lucky: his partner's family is accepting of him. But not everyone is so fortunate. Kirkey recounts the story of a friend whose partner died after the two had been together for 29 years. The men lived in a house legally owned by the deceased partner, but after his death, the dead man's brother "moved in because there was no will in place," Kirkey says, "and basically tried to take possession of everything he possibly could."

It's true that gays can take some legal precautions -- drawing up wills, sharing powers of attorney, or naming their partners in "health-care proxy" documents. But examples abound of such patchwork protections' being challenged or ignored, and many couples may not even know about them.

Moreover, no legal protections can confer the legitimacy that a recognized marriage brings to a relationship. Consider the case of Don Picard and Robert DeBenedictis, two software engineers living together in Medford with an adopted newborn daughter, Carmen. Because Massachusetts allows same-sex couples to adopt children, Picard and DeBenedictis are in the curious position of being next-of-kin to their daughter, but not to each other. More to the point, the two of them are trying to build a family in the face of politicians who are telling them they don't qualify as one.

"If you really want to support a family," says Picard, "then instead of devoting energy toward saying some families are good and some are bad, I think energy should go to supporting families that already exist in our society." As the baby begins to cry in the background, DeBenedictis adds: "I can support family values. What I don't support is the religious-extremist definition of a family as excluding me. I don't know who made them the arbiters of what a family is."

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The US Supreme Court struck down the last of America's laws against interracial marriage in 1967. The very name of the case was an almost literary evocation of the principles at hand: Loving v. Virginia.

In Loving the court ruled in favor of, well, loving -- and against laws that could imprison blacks and whites who wed. Marriage survived that change, and today, most Americans look back at such laws in disgust. Likewise, say gay activists, straight America will look back one day at the denial of marriage rights to gays with the same pangs of shame.

And likewise, it is the courts to which the gay community is looking for the moral leadership that elected politicians can't or won't provide. As more legal challenges proliferate around the country, the marriage question will slowly be hashed out through a series of court battles, probably culminating with a day of reckoning in the US Supreme Court. Some activists think that day might not be too far in the future.

"The only question now is whether it's going to be a decades time frame or a months-and-years time frame," says Evan Wolfson, marriage project director of the Lambda Legal Defense and Education Fund.

Not everyone is so starry-eyed, however. US Representative Barney Frank (D-Newton) argues that activists are mistaken to push the country too far too fast, risking a conservative backlash.

"I hope what people will not do is say that if Vermont recognizes it, it's valid in Mississippi," he says. "Then you get bills like Rogers's. We should concentrate on making the states' rights argument. There's a mistake in thinking that legal technicalities will take you too far. . . . I think the courts would rule that the states have a right to set their own policies." Adds Frank: "In the near term, I think the political focus is going to have to be on domestic partnerships."

Domestic-partnership benefits, which many businesses and some local governments now provide, can certainly make life easier for gay couples. But many gay activists say that domestic partnership is a poor substitute for the legal perks of marriage -- taxes and Social Security remain unaffected, for instance. And to some who see straight-only marriage as discrimination, pure and simple, domestic partnership is little more than a way to assuage the public's conscience.

And substitutes such as domestic partnership provide cold comfort for couples like William and Miguel, who must live a lawbreaking life no heterosexual couple would be forced to consider.

"It's important that people know it's not just nice that we can walk down the aisle," says William, recalling how on a recent afternoon he vigorously gathered signatures for a pro-gay marriage petition, amazing some of his friends for whom marriage rights aren't quite so urgent a cause.

"I collected more than 900 signatures," William says. "I was a madman. They were like, 'What is wrong with you?' And I said, 'For you people, this is something nice. For me, this is my life.'"

Michael Crowley can be reached at mcrowley[a]phx.com.