After Mass., Debate Rages

Gays and lesbians urged to enlist allies over holiday tables

While advocates for same-sex marriage insist that the Massachusetts Supreme Judicial Court’s decision last week means that licenses will be issued to gay and lesbian couples by May 2004, state leaders are still pursuing a civil union plan that they assert will comply with the court order and a state constitutional amendment to undo it. The politicians’ plans to thwart the drive for marriage come despite new polls showing most Bay State residents in support of the court’s decision, written by Chief Justice Margaret Marshall who grew up in apartheid South Africa and once said, “Justice is not hypothetical to me.”

On the national level, religious right activists are demanding that Pres. George W. Bush support an amendment to the U.S. Constitution to limit marriage to man-woman couples and deny its benefits to anyone else. Bush, despite declaring himself a defender of the “sanctity” of heterosexual marriage, has yet to sign onto the amendment drive.

And while a number of prominent conservatives spoke out against the amendment this week, some, including disgraced former Nixon aide Charles Colson, a key strategist on the religious right, are leading an effort to modify its language to make it more palatable.

Meanwhile, Delaware’s Joseph Biden, a leading Senate Democrat, told “Fox News Sunday” that same-sex marriage was inevitable, saying, “It’s going to be something we have to go through as part of the maturation process of the nation.”

In New York State, no specific strategy has emerged for capitalizing on the Massachusetts decision, despite the fact that it was anticipated for months. Alan Van Capelle, executive director of the Empire State Pride Agenda (ESPA), said, “We have already been reaching out to our elected representatives in Albany and in Washington, DC to let them know they can not be silent about the civil rights of the gay men and lesbians they represent.” Joe Tarver, an ESPA spokesperson, said Van Capelle has contacted Governor George Pataki, Senate Majority Leader Joe Bruno, and Assembly Speaker Sheldon Silver “to discuss their responses and offer to work with them to help them understand the issue better.” The Pride Agenda has also been working with Lambda Legal Defense and Education Fund and Marriage Equality New York, a grassroots advocacy group, to discuss options that go beyond legislative efforts in Albany.

But Republican Pataki, an avowed opponent of same-sex marriage, did not return a call asking for his reaction to the Massachusetts decision, though he did release a statement saying he was comfortable with the state’s marriage laws as they are. Bruno (R-Troy) told the Associated Press, “I don’t believe people of the same sex need or ought to be legalized in marriage.” And the office of Silver (D-Lower East Side) continued to maintain that this is not an issue that has been brought up in the Democratic conference nor did he have a position of his own. The Democratic Party of New York State endorsed marriage rights for gay couples earlier this year.

The good news from Massachusetts is that 50 percent of state residents support the court ruling, 38 percent disagree, and 11 percent had no opinion, the Boston Globe/ WBZ-TV found. Fifty-three percent opposed amending the state constitution to ban same-sex marriage. A Boston Sunday Herald poll showed 76 percent of Massachusetts residents in favor of extending “full legal benefits to gay couples” and in support of same-sex marriage by a 49-to-38 percent margin. That poll also found that 63 percent disagreed with the charge that same-sex marriage would sully the “sanctity” of marriage.

“I don’t take any positions based on polls,” Republican Gov. Mitt Romney told the AP. He is supporting a state constitutional amendment to limit marriage to ban recognition of same-sex marriages. Attorney General Thomas Reilly, a Democrat, reads the court decision to allow the legislature to enact some kind of civil union law short of marriage to comply with the order. But, Romney, Reilly, and legislative leaders have not settled on a course of action.

Mary Bonauto of Gay and Lesbian Advocates and Defenders (GLAD), attorney for the plaintiff couples in the successful Goodridge v. Department of Public Health case, said last Friday, “We’re very disappointed that our elected officials are blocking the doorway to equality. The Supreme Judicial Court was clear that it is unconstitutional to deny these couples the right to marry and it’s mean to play politics with people’s lives.”

Civil unions, Bonauto said, “are not an adequate remedy.”

Creating civil unions was the response of the Vermont legislature and then-Gov. Howard Dean to a 1999 state court order to equalize relationship rights for same-sex couples. The lawyers and plaintiffs in that case accepted the compromise, but the Massachusetts litigants, arguing that the high court in their state erased any ambiguity that the Vermont decision may have had, are signaling that they will go back to the Supreme Judicial Court if they get anything less than marriage licenses,

In agreement with GLAD that the ruling clearly opens marriage to same-sex couples are the Massachusetts Bar Association, the Boston Bar Association, and the Women’s Bar Association of Massachusetts, the Boston Globe reported. But the Archdiocese of Boston issued an editorial Friday calling upon all Catholics, including lawmakers, to fight the ruling.

Evan Wolfson, director of Freedom to Marry, said, “I believe when the dust settles, Massachusetts will obey its own constitution.”

He is one of many LGBT leaders urging the community to engage their families and friends on the marriage issues during the holiday gatherings this week and through the end of the year.

“Each one of us can go person-to-person and ask our non-gay neighbors to support marriage equality,” Wolfson said. “Thanksgiving is a perfect opportunity.”

Wolfson also noted, “New York lags shamefully behind other states in providing protections for gay New Yorkers and their families.”

State Senator Tom Duane (D-Chelsea) said that he will push his Equality in Marriage bill in Albany, though he is in the Democratic minority in his chamber.

“It’s all very possible,” Duane said. “Now we’re surrounded by places that recognize same-sex relationships with marriage in Canada, civil unions in Vermont, recognition by the Massachusetts court, and a case in New Jersey that is moving forward.”

Assemblymember Deborah Glick (D-Greenwich Village), the dean of out gay or lesbian legislators in Albany, said, “The level of anxiety and emotionalism around this issue feels similar to what was happening around segregation when I was growing up. That is an issue that we still haven’t fully addressed and continues to have a strong emotional component.”

Glick believes that we are going to have to be “far more assertive” about our need and desire for marriage rights in New York in order to obtain them. She agrees that the bill by Duane and Assemblymember Dick Gottfried (D-Chelsea) opening marriage to gay couples “is the ultimate goal,” she is hoping to make progress on some form of domestic partner legislation in Albany’s upcoming session. She feels that getting some kind of bill on same-sex relationships on the floor for a debate is key to advancing the issue, because then her colleagues “can’t avoid it.”

Glick has not received any assurances from Assembly leaders that they will not take up a state Defense of Marriage Act, “but I don’t think it is likely that we would,” she said.

Action on marriage in New York seems more likely to come from the courts than from the legislature, especially with a Court of Appeals, the state’s highest, which has delivered a series of decisions incrementally recognizing same-sex relationships over the last 15 years. There is an ongoing lawsuit involving St. Vincent’s Hospital, which is appealing a lower court ruling that a gay New York partner to a Vermont civil union has standing to sue for the wrongful death of his spouse, but no case testing the marriage law here.

Brendan Fay, who married his husband Tom Moulton in Canada this summer, said that their marriage has been recognized by their local Commerce Bank as well as by Moulton’s employer, Montefiore Hospital.

“We always put down that we’re married,” Fay said, “and so far nobody has raised any questions.”

The couple intends to list themselves as married on their tax returns.

We’re not going to commit perjury,” he said, but neither have they decided whether or not they will pay the unmarried tax rate given that the federal government does not recognize same-sex marriages.

Over the weekend, conservative pundit David Brooks came out for same-sex marriage in his New York Times op-ed column, And right wing commentators George Will on ABC-TV’s “This Week” as well as the Manhattan Institute’s Bill Stern in a debate on WCBS-TV’s “Kirtzman and Co.” argued against amending the United States constitution to limit marriage to sex-discordant couples, even though both men oppose gay nuptials.

“If Brooks can come out for same-sex marriage, there is almost no one who can’t,” Wolfson said.

Republican National Chairman Ed Gillespie dodged the issue of the amendment on CNN’s “Crossfire” on Monday. Like Will, Stern, and other conservatives, he wanted to use his time to condemn the “judicial activism” of the Massachusetts court and other judges. He added, “If gay activists try to nationalize the institution of gay marriage, I believe it will be an issue in the campaign.”

However, given the still-stalled effort to move along a federal anti-marriage amendment, the issue is not likely to become truly national until the constitutionality of the 1996 Defense of Marriage Act (DOMA) is tested. That will happen when a married same-sex couple in Massachusetts sues for federal rights or rights within their homes states or similar action is taken by one of the scores of American gay couples who married in Canada.

Speaking to “Fox News Sunday,” House Speaker J. Dennis Hastert voiced opposition to gay marriage, but suggested that action on a federal constitutional amendment banning it would not come until DOMA had first been reviewed in the courts. It could take years for such cases to be decided, by which time America’s comfort level with their gay married neighbors is likely to rise.

Even the state constitutional amendment against same-sex marriage in Massachusetts cannot be voted on until 2006 at the earliest, by which time leaders such as out Rep. Barney Frank (D) believe that the gay community will prevail as more and more same-sex couples marry there and the sky does not fall.

Much was written this past week about the stances of the presidential contenders on the issue of “gay marriage.” Every one of them has been questioned about it. President Bush’s public statements have given heart to far-right anti-gay activists such as Lou Sheldon of the Traditional Values Coalition, but he and his comrades are threatening to boycott the Republican ticket if the party does not endorse the Federal Marriage Amendment in their platform. The first tier of Democratic candidates (Howard Dean, John Kerry, Wesley Clark, John Edwards, Richard Gephardt, and Joseph Lieberman) all oppose same-sex marriage and support to greater and lesser degrees civil unions or domestic partnerships. Only Carol Mosley Braun, Dennis Kucinich, and Al Sharpton support marriage equality for gay people.

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