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LEGAL PRIMER
Clarifying the gay-marriage debate
BY KRISTEN LOMBARDI

Last week, the National Gay and Lesbian Task Force (NGLTF) released its first report for people still wondering why gay marriage has become all the rage these days. The 10-page policy brief, "Marriage: Legal Protections for Families and Children," serves as a primer for Massachusetts residents who are struggling to keep up with the issue ever since the Supreme Judicial Court (SJC) granted same-sex couples a constitutional right to marry last November. (You can read the report online at www.ngltf.org/library.) Not only does it describe the historic SJC decision in simple terms, but it also defines such oft-repeated concepts as civil union, domestic partnership, and, of course, anti-gay-marriage constitutional amendments. Ultimately, it shows how civil marriage is the only way for same-sex couples to achieve full equality. The Phoenix caught up with NGLTF Policy Institute director Sean Cahill, the briefís author, to discuss the state of the gay-marriage debate here and across the country.

Q: So civil marriage is it, according to this brief?

A: Yes. There are constitutional, ethical, and practical reasons why same-sex couples in Massachusetts should be able to marry. The constitutional reasons were explained by a four-to-three majority on the SJC. There are ethical reasons, too, since itís unethical to separate a group of residents, as the pending state-constitutional amendment would do, and make them second-class citizens. As for practical reasons, parents and children in gay families would have more peace of mind and greater economic security if they were able to marry.

Q: The brief shows many countries ahead of the US in "protecting" same-sex couples.

A: Thatís right. If you take away the Massachusetts high-court ruling, the US is very far behind other countries. Americans assume that European countries will be progressive on gay issues. Yet itís surprising to people that, in fact, a lot of developing-world countries are ahead of the US, too. Taiwan is now considering legalizing same-sex marriage. Brazil and South Africa provide basic protections to gay couples that gay couples here cannot depend upon. Itís important to understand this is something thatís happening around the world, and itís not going away. Eventually, this will happen in the US, too.

Q: What do you make of the more than 100 federal legislators whoíve signed on to the federal-constitutional amendment, as explained in the brief?

A: A lot of conservatives in Congress, who are overwhelmingly Republicans, would like the 2004 election to be about gay families. They want this issue to become the defining issue because they donít want to talk about the economy, foreign policy, and environmental policy. They donít want to run on the issues that are of greatest importance to average voters. Instead, they want to use this as a wedge. In a more positive light, an increasing number of conservative Republicans are saying, "Itís not appropriate to amend the US Constitution to single out a group of people and deny them rights." No amendments have singled out a minority and said this group cannot have X, Y, and Z.

Q: The brief ends by saying that the SJC ruling was not "a radical decision." Yet it was unprecedented. What do you mean?

A: The justices interpreted the equality and due-process provisions in the state Constitution. They said the Constitution has these provisions and this is what they mean in practice in the contemporary period. In that sense, it wasnít radical. The majority of justices were appointed by Republican governors. So you canít say theyíre all Dukakis-appointed leftists, either. Anti-gay politicians and religious-right groups have made the claim that this decision is an example of "judicial tyranny." What theyíre saying is that the courtís interpreting the Constitution is undemocratic. But the judiciary is the branch that says what abides by the Constitution. In that sense, this was the court doing what itís set up to do. In that sense, it was not at all radical.


Issue Date: January 23 - 29, 2004
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