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The case for same-sex marriage (continued)


1990: For the first time, the US Census includes a question that more or less identifies gay couples. (Credit:

1990: Two lesbian couples and one gay couple apply for marriage licenses at the Hawaii State Department of Health. In 1991, the Hawaii attorney general denies the licenses on the grounds that the couples are of the same sex. Attorney Dan Foley files suit in Hawaii State First Circuit Court, saying his clients’ rights to privacy and equal protection under Hawaii’s Constitution were breached. (Credit:

1991: The Church of England publishes the House of Bishops’ statement Issues in Human Sexuality, which allows ordinary members of the congregation to have faithful gay relationships but demands celibacy from homosexual clergy. (Credit: Associated Press)

1992: The Canadian province of Ontario extends spousal benefits to same-sex partners of government workers. Massachusetts governor William Weld signs an executive order granting lesbian and gay state workers the same bereavement and family-leave rights as heterosexual workers. (Credit:

1993: Hawaii Supreme Court rules that denying marriage licenses to same-sex partners is discriminatory unless a "compelling state interest" can be shown for such denial. (Credit:

1995: A study in the Southern California Law Review reports that within five years of allowing same-sex couples to wed, the "first mover" state would reap nearly $4 billion in tourist-related earnings. (Credit:

1996: A Hawaii court rules that the state has not proven that it has a "compelling interest" in prohibiting gay marriage. Concern over the case leads Congress to pass the Defense of Marriage Act. (Credit:

1997: Hawaii becomes the first state to mandate statewide domestic-partnership benefits for same-sex couples, called "reciprocal beneficiaries." These benefits cover fewer than 60 items (the law seems ambiguous on the exact number) and are offered only through certain businesses, some of which complain that the state has no business dictating employee policies. The Hawaii attorney general declares that she will not enforce the requirement for private employers to offer benefits. (Credit:

1997: A Dutch parliamentary panel clears the way for passage of a new law, which gives "Registrations of Partnership" the same legal weight as heterosexual marriage. The only difference is that the law does not give lesbian and gay couples the right to adopt children or to be granted automatic custody of a partner’s child. (Credit:

1998: Voters in Alaska and Hawaii approve measures to block same-sex marriages. As a result, the Hawaii marriage case is dismissed the following year. (Credit:

1998: The Netherlands passes a law allowing same-sex couples to wed on January 1 at midnight. The law requires two weeks’ notice be given to the local authority before the civil ceremony is to take place. (Credit:

1999: The Vermont Supreme Court rules that the state must grant gay and lesbian couples the same rights as married couples. (Credit:

2000: California voters approve a ballot measure to block recognition of same-sex marriages. (Credit:

2000: The Vermont legislature passes a groundbreaking law that creates a new marital status, called "civil union," for same-sex couples and provides all state-law benefits of marriage to couples so joined. (Credit:

2000: Reverend Brent Hawkes announces that the Metropolitan Community Church, in Toronto, Canada, will start issuing marriage licenses to same-sex couples in January 2001 under the "banns of marriage." (Credit:

2000: Vice-presidential candidate Dick Cheney becomes the focus of fierce criticism from conservative quarters for making generally supportive comments about the legal recognition of gay relationships in a campaign debate with his Democratic vice-presidential rival, Senator Joseph Lieberman. Asked whether gay men and women should have all the constitutional rights enjoyed by other citizens, Cheney says that "people should be free to enter into any kind of relationship they want to enter into" and that the issue of gay marriages should be decided by the states, as in Vermont. (Credit:

2003: Belgium’s parliament passes a law on January 30 giving its gay and lesbian citizens full access to marriage. Canada passes a law permitting gay marriages on June 10. (Credit: Associated Press)

compiled by Elizabeth Chuck


TWO WEEKS AGO, the Court of Appeal for Ontario ruled that there was no reason to continue denying marriage licenses to gay and lesbian couples. Two of the plaintiffs in the case, Michael Stark and Michael Leshner, wed within hours of the ruling. In its next-day coverage of the story, the London Free Press of Ontario published a photo of the newlyweds kissing. The decision sparked an outcry from readers. "Disgusting. I’m ashamed to be a London Free Press reader, I’m ashamed to be an Ontarian, I’m ashamed to be Canadian," wrote one. "In all my 90 years, this is the most disgusting thing I have seen in any newspaper. It’s enough to make a person vomit," wrote another. Not that all the feedback was negative. One reader enthused: "Just wanted to let you know I was quite shocked to see the London Free Press print the same-sex kiss — shocked in a good way. I’m tired of London being known as a conservative backwater. It took some guts."

The fuss prompted Free Press editor Paul Berton to publish a column defending his decision to run the photo. "[I]t was not our intention to offend or upset readers," Berton wrote, "but to reflect a historic court decision and keep them informed in a changing world."

The same thing happened at Nova Scotia’s Halifax Herald, where "newsroom phones rang off the hook" in response to the decision to show the two men kissing, wrote editor Sheryl Grant in a column describing the newsroom debate that took place over running the photo: "We had options. The Canadian Press distributed several photos of the couple. Couldn’t we just use a photo of the couple standing side by side and smiling happily? Well, we could have. But the photo of the kissing couple was the best of the bunch from a purely photographic point of view. And it also, we felt, went straight to the heart of the story. This was, after all, what the story was about."

"We’ve won in the court of law," observes Toronto resident Kevin Bourassa, whose marriage to his husband, Joe Varnell, two years ago in a religious ceremony is now legal thanks to the June 10 ruling (see "Canada Legalizes Same-Sex Marriage," This Just In, June 20). "We can’t really say we’ve won in the court of opinion yet. That will take more time. I think we have to reach out to those who have fought us so hard."

Clearly, the notion of two men or two women marrying remains controversial. So much so that it’s easy to forget that the institution of marriage has undergone four distinct changes during the last 60 years — each just as radical as the one now proposed.

The erosion of the "doctrine of coverture" is perhaps the greatest change. This doctrine, which is rooted in English common law, resulted in a woman losing her legal identity once she married. "Under the coverture regime, a woman entering into marriage witnessed a sudden, unalterable change in her rights as a citizen.... Most notably, her personal and real property, whether acquired before or after the marriage, immediately became the property of her husband," according to one of the amicus curiae briefs filed in the Goodridge case by 26 history scholars from universities around the United States. Or, as Evan Wolfson, executive director of Freedom To Marry, a partnership of gay and straight advocates working to win marriage equality nationwide, puts it: "She actually lost her legal rights. The whole idea of ‘Mr. and Mrs. Him’ comes out of this idea that the woman merges her identity to the man’s."

As documented by the historians’ amicus brief, coverture accounted for such quaint arrangements as a husband legally pocketing the earnings of a wife working outside the home, even as he lived in an adulterous relationship. Elements of the coverture doctrine remained in effect up until the 1970s, says Wolfson. But with the rise of feminism, the courts gradually chipped away at these laws. "Bishops and others predicted that if [the doctrine of coverture] was changed, women would be leaving their husbands and society would crumble," Wolfson adds.

Of course, women have been leaving their husbands in droves (and vice versa) thanks to another change in the law regarding marriage: making it possible to end them. Until no-fault divorce laws were enacted by state legislatures (California passed the first one in 1970; they were enacted across the country by the early 1980s), it was very difficult to leave a marriage once you had entered into it. Both parties, for instance, had to agree to end the marriage. In 1927, the Nevada state legislature liberalized the state’s divorce laws. That, combined with the state’s minimal six-week residency requirement, turned Reno into a destination spot for women seeking to end their marriages. Movie stars including Mary Pickford and Rita Hayworth and wealthy socialites such as Bobo Rockefeller and Gloria Vanderbilt all did time on Reno "divorce ranches" waiting for their divorces to come through. Today, the notion that one would have to travel out of state and establish residency to get a divorce is so bizarre that two films about the phenomenon now rank as camp fare, George Cukor’s The Women (1939) and Donna Deitch’s Desert Hearts (1985). (In the latter film, the divorcee-to-be finds true love with a female ranch hand.)

The third significant change to marriage law was the gradual "decoupling of decisions about procreation and contraception from marriage," Wolfson says. The landmark 1965 US Supreme Court decision Griswold v. Connecticut found that married couples could have access to contraception. It affirmed, in other words, that sex within marriage wasn’t solely for the purpose of procreation. "Today everyone accepts the idea that the government can’t tell you" why you should have sex, Wolfson says. "The only time that argument gets raised is when it’s argued that gay people shouldn’t get married."

The fourth change to marriage law is the one most comparable to the current battle to win marital rights for same-sex couples: ending race discrimination. Anti-miscegenation laws in this country existed up until 1967, when the US Supreme Court ruled, in the aptly named Loving v. Virginia, that laws prohibiting marriage between spouses of different races were illegal. Before that, interracial couples could be considered married in one state but not another. Loving came about when an interracial couple residing in Virginia traveled out of state in 1958 to get married in order to circumvent Virginia’s ban on interracial marriages. A year later they were prosecuted under Virginia’s anti-miscegenation law and each sentenced to a year in prison. The sentence would be suspended, the couple was assured, if they simply moved out of state, which they did. In 1963, they filed a lawsuit challenging the constitutionality of Virginia’s law. In 1966, the Virginia Court of Appeals upheld the ban on interracial marriages. A year later, the US Supreme Court struck it down.

None of these dramatic changes governing what a marriage is — and isn’t — took place overnight. The battle to end race discrimination in marriage, for instance, saw its first victory in 1948 when a California court, by a vote of four to three, ended the state’s ban on interracial marriages. "Many people thought that was a very daring and hard decision," Wolfson says. "History has vindicated that decision. Some court is going to have to go first here to end sex discrimination in marriage, and some court will and the public will follow and the country will be better for it."

LAST APRIL, Massachusetts state senator Cheryl Jacques testified before a Senate committee on the bill put forward by State Representative Phil Travis that would restrict marriage to heterosexual couples. "I appealed to [my colleagues] and said I’d like to think I work as hard as they do — and they work very hard — but at the end of the day, they go home with something I don’t have: health benefits for their family," Jacques recalled in a recent interview. "They know that my partner and I are raising two little boys. They see no justification for why I don’t have health-care coverage for my family."

The fact that there are legislators like Jacques — one of three openly gay legislators on Beacon Hill — who influence fellow policymakers simply by going about their lives has accelerated public support for legalizing relationships of same-sex couples. The public also has been swayed by the horror stories of gay and lesbian couples who do not have access to marriage rights, like those of the surviving partners of 9/11 victims unable to collect relief funds. Or the story of Sharon Smith, whose partner Diane Whipple was mauled to death just outside their apartment door by a neighbor’s dog. Smith’s anguished testimony before the California Assembly, in which she detailed the roadblocks she faced in suing the dog’s owners and handlers because she and Whipple were not legally married, no doubt influenced the body’s decision to pass a domestic-partnership bill granting many of the rights and privileges of marriage to gay couples.

One of the greatest ironies of the public debate over whether gay couples should be allowed to marry is that the reflexive cry "But what about the children?" — which is raised in nearly every debate — has been turned on its head. With each change in the construction of marriage, critics howled that civilization as we knew it was coming to an end — and that these changes would be bad for children. Ending the doctrine of coverture, critics at the time asserted, would make children vulnerable. What motivation would a father have to provide for his family if he was no longer in charge? Easing access to divorce would unalterably harm children for the same reasons. Children produced by a mixed-race marriage would be subject to prejudice — and the confusion of not knowing which race they belonged to. And bringing contraception into marriage would mean ... no children at all.

But when children are brought into the marriage debate today, they merely strengthen the case for change. Legal recognition of the marriages of gay couples in the Commonwealth of Massachusetts would "protect [these couples] and their children," asserts Mary Bonauto, an attorney for Gay and Lesbian Advocates and Defenders, who argued the Goodridge case before the state Supreme Judicial Court on March 4 (see "Gay Marriage: Will the SJC Follow the Law or Cave in to Politics?", News and Features, April 18).

Indeed, Jacques says talking about her children, twin boys born to her partner Jennifer Chrisler last April, has made a difference with some of her fellow state senators. "A lot of my colleagues didn’t understand that my partner and my two children wouldn’t get my pension. We all worry about leaving our families unprepared," Jacques says. "Concrete examples like that are changing public opinion because that’s what the nitty-gritty of this civil-unions battle is all about."

What’s a social conservative to say about that — other than to rail that gay people shouldn’t have children in the first place?

There’s no question that the increased visibility of gay and lesbian people in general is affecting this debate. The 2000 census showed that gay and lesbian couples reside in 99.3 percent of the counties across America, according to an analysis of Census data by the Human Rights Campaign. In the 1990 census, such couples were identified in only 52 percent of the country’s counties. But the role of children is undeniable. "Ultimately, it’s going to make marriage inevitable [for gay people]," says Johnny Symons, director of the documentary Daddy & Papa, which is about gay men who choose to become parents. "I say that because we can form our own families and we have our own families now and it’s just a matter of when is this society going to recognize that these families exist?" (Daddy & Papa will screen at the Peabody Essex Museum, in Salem, June 28 at 7:30 p.m.)

From a purely practical point of view, lesbian- and gay-headed families are hard to miss. "Gay and lesbian families are much more open about who they are and are a much more obvious part of the fabric of the community," Bonauto says. "Their kids are attending the same day-care centers. They’re at the same playgrounds, at the same parent-teacher meetings. As a result, I think it’s become harder culturally to exclude these families. You can’t ignore the fact anymore that they exist."

No, you can’t. We live in a constitutional democracy. Perhaps the most important tenet of our system is this: the majority rules in broad areas of public interest, but the minority has certain rights and protections that may not be abridged no matter how the majority feels. Two or three generations ago, lesbians and gay men did not exist as a distinct, identifiable minority group. Today they do. And their agenda must be addressed.

No one would condone the idea if 51 percent of the public voted to bury gays and lesbians up to their necks and stone them to death in the public square. So why is the notion accepted that the majoritarian impulse allows society to deny lesbians and gay men their basic human rights — to live openly and equally, with the same protections and benefits as the heterosexual majority? For the most part, the doctrine of coverture was abandoned thanks to decisions made by jurists, not legislators. The same goes for anti-miscegenation laws. And Jim Crow laws. If society had waited for legislators to do the right thing in these instances, we’d still be waiting.

It’s time now to do the right thing and allow gay and lesbian couples to wed. Society is ready — and willing.

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Issue Date: June 27 - July 3, 2003
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