Notes from the Front Lines of the Struggle for Same-Sex Marriage
March 29, 2004:
Today, the Massachusetts legislature revisits the issue of whether to amend the state constitution to prohibit same-sex marriages while granting gay couples “civil unions” with all the same legal rights and responsibilities of marriage, just not the name.
Imagine if government officials proposed that same-sex and opposite-sex couples alike be granted state licenses only to enter into civil unions and not civil marriages. Would those politicians remain in office very long?
Supreme Court Justice Robert Jackson answered the question 55 years ago: "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." (Railway Express Agency, Inc. v. New York).
Just such a political experiment is occurring in Benton County, Oregon, where the three-person county commission has decided not to grant marriage licenses to anybody. The commissioners believe that giving same-sex couples licenses would violate a state statute defining marriage only between a man and a woman. At the same time, the county officials think that granting licenses to opposite-sex, but not same-sex, couples would violate a state constitutional mandate of equal rights. In contrast, the commissioners argue, issuing marriage licenses to no one avoids discrimination.
The Oregon commissioners are closer to long-evident egalitarian truths than the legislators in Massachusetts, who appear on the verge of approving the proposed state constitutional amendment.
More than a century ago, the U.S. Supreme Court (Plessy v. Ferguson) sanctioned a constitutional experiment of “separate but equal” in American race relations. In time, the Court and most Americans reached the inevitable conclusion that separate can never be equal. Why is the same fact so obscure to many Americans today with regard to marriage?
March 28, 2004:
The Stonewall Democratic Club of Rockland County and the Empire State Pride Agenda co-sponsored a “Town Meeting on Marriage and LGBT Families” at the Nanuet Public Library, Rockland County, NY. Ross Levi, the Pride Agenda’s Director of Public Policy and Governmental Affairs, moderated, pointing out that this was the fifth of ten statewide town meetings planned by the Pride Agenda. About 150 people attended.
Levi began by distinguishing between civil marriage and religious marriage. He asked the audience what words came to mind when they heard the word “marriage.” Someone called out “love,” another shouted “commitment.” Soon there was a flood: “loyalty”, “future”, “fidelity”, “family”, “legality”, “children”, “taxes”, “benefits”, “wedding”, “divorce”, “responsibility”, “acceptance”, “toasters”, and “registries.”
Levi noted that there are more than 1,800 legal rights and responsibilities arising from marriage. The General Accounting Office has identified 1,138 federal ones, and the Pride Agenda more than 700 state-created ones. On the federal side are Social Security survivor benefits, immigration rights, the marriage tax bonus, veterans survivor benefits, and pension rights. Levi emphasized that not one of these rights can be achieved except through the institution of marriage, because that’s how federal law confers them. Marriage in New York State supplies rights with regard to hospital visitation and decision making, inheritance, the transfer of property assets, burial decisions, divorce, and the presumption of parenthood. Levi said that between 6 and 10 million children are being raised by lesbian and gay parents across the United States. In the last U.S. Census, there were 46,000 households in New York State that self-identified as same-sex households, with at least one in every county of the state. Twenty-five percent of those households are raising children.
To humanize these issues, local families provided testimonials at the town meeting. Jason Crecenzo and Mark Kahn have been together almost seven years. Mark began their story. “On a daily basis we don’t face discrimination. We’ve had a lot of luck. We buy real estate together; we buy cars together; we’ve bought furniture together. It never once became an issue.
“The first time it really happened was with Talia, when we went to become foster parents. Because we’re not married, we were not able to do this together. We both were certified as foster parents within the Rockland County Department of Social Services. But when it became time to actually place the child with us, she became Jason’s. In any of the court papers, in anything that had Jason’s name on it, I was no where to be found. It’s been going on for two years. When they placed the second child with us, again, my name was no where on there. Simply because we’re not married.
“We just recently adopted. Or actually I should say, Jason just recently adopted. As of February 10th, she is now officially a Crecenzo. But again we have to apply for a second-parent adoption because New York State won’t allow us to do it together because we’re two men. Even though she’s lived with us for two years, and she’s just as equally my child, that’s it. She’s really only Jason’s at this point.”
Jason continued. “In addition to that, Mark’s not covered under any of my benefits. I work for a school, and with that I have a pension and I have really good medical benefits. But because we’re not married, they don’t recognize Mark as someone I can cover on my benefits. So I’m paying for family, because I have a child right now, but I can’t include Mark. So he has to get his own policy. In addition, with pension and Social Security, I have to worry, because if something happens to me, Mark is only covered until Talia is 18 and then that stops. So additional life insurance policies and more legal documents have to be drawn up just to protect him if, God forbid, something happens to me, or vice versa. That’s the sort of stuff that we’re facing as a family that’s trying to get equal rights just like any married couple in the country. There’s a lot more thought that has to go into it, and more expenses. It’s just not a given, which it is for so many other people.”
Mark added, “It’s just not fair, basically. It’s really just not fair.” He then read a letter to the editor from the Orange County Register:
Children Face New Bias. If a lesbian couple marrying somehow arrange to “have” children, the children will be deprived of a father’s love. Similarly, if a homosexual male couple marrying somehow arrange to “have” children, the children will be deprived of a mother’s love. This discrimination against children, individually and as a class, is already occurring when states allow gay couples to adopt. Gay marriage and adoption are the most aggressive way to oppose gender diversity. The effect of this upon society will be horrific and will give those who oppose American democracy a new weapon in their propaganda arsenal. Please contact your state and national legislators. A constitutional amendment may be what is necessary to save children from this form of child abuse. But there can be little doubt that when hearings begin, some children raised by homosexual couples will testify about how “normal” their childhoods are. Pro-homosexual psychologists can be counted on as well.
Mark then read a rebuttal written by his father, who was in the back of the room at the town meeting:
When I first read Mr. Morton’s letter to the editor on February 28th, I became very angry. Then I felt very sad, not for the children that Mr. Morton alleges are abused because of homosexual parents but for Mr. Morton himself. I have a son who is 32 years old and gay. His torturous adolescence taught me that homosexuality is not a choice but rather who you are, probably at birth. His incredible strength and the unconditional love of his entire family have helped him to become the remarkable man that he is today. Mark and Jason, his life partner of six years, have just recently adopted their daughter . . .
Shouts of “Daddy, Daddy!” came from the back of the room. “And that’s her,” Mark added. “Daddy, Daddy!” continued from the back, as the audience broke into laughter. Mark continued his father’s letter:
She arrived as a very fragile six-week-old premature infant. Talia’s natural mother has extreme emotional problems and would have put Talia’s life in jeopardy. But instead, today Talia is a healthy, self-confident, very precocious two-year-old full of love and hope. With the support of extended family . . .
Talia romped to the front of the room, bounded into Jason’s arms, kissed both of her fathers, and totally stole the show. Mark persevered with his father’s letter:
. . . With the support of extended family that includes great-great-grandparents and her own incredible parents, Talia will reach her full potential. I doubt that there is any hope for Mr. Morton. His prejudice appears to have consumed him. As for me, I just thank God every day for the precious gift He has given me.
The next couple were Ileana and Chris Meneses-Diaz. Ileana began. “We met about eight years ago while we were in college. We relocated to Rockland, and after seven years being together, we decided that we wanted to get married. We went to Patty Ackerman, and she agreed to do our ceremony at Grace Episcopal. That was something that we went into knowing that politically and legally we would have to account for, not having the same access as other couples. We went to a lawyer, got a legal name change, wills, a health care proxy, and a power of attorney. And when we refinanced, we put our names on the mortgage. Just to account for all of the other things that could be contested.
“Yet we still find that, after almost a year of being married through the church, it doesn’t account for everything in our lives. Even though our families have come along and they accept us as parts of the family, we really don’t get the same respect or the same acknowledgment of being a married couple as, say, Chris’s brother, who has a wife and a daughter. And sometimes it does affect the idea of when we want to start our own family and have children as well.”
Chris continued. “I’m being more practical. I think money a lot. We had this big wedding and had a great time. We had to pay for all the wedding. In addition, we had to pay for a lawyer that, if we had been straight, we could have written off. Thank God for our lawyers because they put us on lay-a-way. [Laughter erupted in the room.] So we were able to make payments to afford this. As women who don’t make as much money as men, we have to think about how we’re going to build our future based on not earning as much as men.
“I travel a lot for my business, and fortunately I’m very open at my job, which is great. But the underlying fact is that we’re not married there, so she doesn’t have access to my health insurance, and I don’t have access to hers. When Ileana’s father passed away, I had to take time to go see her family. My boss is familiar with the whole legal battle of being gay. Yet his question was more of how can we give you this benefit if you’re not really married? And how do you rebut that? He and I had to sit down and discuss how that policy in the handbook really affects our relationship.
“Again, since I travel a lot for my business, I walk around my office to all 15 people that are employed there and say, ‘I love Ileana, I really love her. In case I die, just remember that everything is going to her.’ Although my family has come around quite a bit, they could still contest my will. So every time I travel, I do this round-about, and everyone in the office says, ‘Yes, we know that you love her.’ [More laughter.] Yeh, but please understand that, if worse comes to worst, I want you to go to court and tell this story about what our relationship is.
“Occasionally, I like to think about moving to different places. My favorite place I would love to move to is Florida, because it’s warm. But I’m also scared about what that means for our family. If one of us had a child, would the other be able to adopt the child. And that’s a scary thought. New York is a very progressive state. So we’re probably going to have to stay here for a while until we evolve. So that’s something we have to talk about every time I get this feeling, ‘Oh, I think it’s time to move.’ We have to think about our family and our future.”
Chip James was the next speaker. “I am here carrying my partner in my heart and in a picture frame. [He displayed a framed photograph.] Because he cannot be here. Almost two years ago, he lost his job in the financial field in New York as many people did. The only big difference that that meant to us was that he would then have to leave our home and leave the country. So his losing his job also meant that he lost his legal status in the United States. So he had to leave.
“For almost two years, we have been paying for extremely incredible phone bills and traveling to see one another. The Atlantic Ocean is quite a commute, I can tell you. While that place that I’m often going to is Paris, which is wonderful, and everyone is saying, ‘Oh, you’re so lucky’ – for me, ironically I feel awful that I’m going to Paris. So when everybody is so thrilled for me that I’m getting to go to Paris, I really don’t want to have to go to Paris to see the person I’m in love with.
“For me, it’s been extremely ironic that I’m hired by the American Psychological Association to fly to their conferences to talk about LGBTQ inclusion in school policies and in mental health trainings. It’s been also extremely ironic that I was part of the process of creating same-sex-inclusive domestic partner benefits in my school district, which now exist here in Rockland, in Clarkstown. But I still cannot participate in those very benefits that I helped to develop.
“Ironically also, I had to go to the doctor the other day. On the questionnaire, the third question I had to fill out on the paperwork on the clipboard was to circle one of ‘single’, ‘married’, ‘divorced,’ or ‘widowed.’ And I was furious because even that form did not have room for me or my relationship.
“This is something that touches me every day. A lot of the kids that I see in my practice and in school are kids who I’m helping through divorce and remarriage in their own families. And I’m daily stricken by the fact that there is no room for my relationship right now in this country.”
For purpose of comparison, Levi next presented a chronology on the evolution of the law on interracial marriage in the United States. He began the narrative with this quotation:
Almighty God created the races white, black, yellow, malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for [interracial] marriages. The fact that He separated the races shows that He did not intend for the races to mix.
Levi asked the audience to guess the year of the quotation and got replies that ranged from the 1940s through the ’60s. The statement in fact dates from 1959, when a Virginia trial judge sentenced a black woman and a white man who had married in the District of Columbia to one year in jail for violating a Virginia law prohibiting interracial marriage.
In the aptly titled case of Loving v. Virginia (1967), the United States Supreme Court found the Virginia statute violated the Due Process and Equal Protection clauses of the Fourteenth Amendment and struck it down, as well as all others like it in 15 additional states.
Yet Levi noted that, as early as 1948, the California Supreme Court had been the first state court of last resort to recognize that statutes prohibiting interracial marriage violated the Equal Protection Clause (Perez v. Sharp).
He ended the comparison with interracial marriage by suggesting that, in the evolution of American law on same-sex marriage, Massachusetts is California, i.e., that the Massachusetts Supreme Judicial Court is leading the way in Goodridge v. Department of Public Health (2003) and Opinions of the Justices to the Senate (2004), just as the California high court did in the Perez case back in 1948.
The next speakers at the town meeting were a group of elected local officials. Introducing Mayor John Shields of Nyack, NY, Levi observed that that town was the first municipality in New York State to declare that it would recognize same-sex marriages from Canada and other jurisdictions authorizing them.
Shields began by wondering aloud, “Is this a good time [for same-sex marriage]? There’s that famous quote, ‘It’s the best of times, and it’s the worst of times.’ The President of the United States really took this issue and put it right in front of us. And encouraged Jason West [Mayor of New Paltz] to do what he did, and certainly encouraged me to do what I’m doing. So we have the President of the United States to thank for putting this on the agenda. [Laughter from the audience.]
“At the same time, what’s happened is, this issue is used as a smoke screen to dismiss discussion of all the other important issues facing this country. However you feel those issues should be solved, it allows the government not to discuss those issues. And that’s extremely unfortunate.
“However, I don’t pick the time, people don’t pick the times, the times pick us. It was kind of thrust upon us when Jason West did this. Bob, my partner, and I went up and saw Jason West. And Bob said, ‘The Mayor of New Paltz is doing it, and he’s not even a member of the club. We have to step up to the plate and do something.’ [More laughter.] So that’s how I was kind of thrust into this.
“I don’t know what the markers to get me to this point in time were. In many ways, from the moment I first recognized I was gay and went through a process of self-acceptance. And being able to stand up in public like this and advocate for an issue like this means I finally, maybe, almost arrived at self-acceptance in a society that deprecated me from the time I was born.
“I think the thing we really have to recognize is the politics of the issue now. Because the truth is that it all has to do with arithmetic and numbers. All these politicians are running around, wondering how you’re going to vote and how many people are going to vote that way.
“Up until now, there have been all kinds of blocks of voters, but not a gay and lesbian block of voters. And so we must be seen as numbers to be reckoned with. And that’s why, in my opinion, none of these elected officials has come through with definitive statements because they haven’t decided how they’re supposed to think yet. So you have to tell them how to think. And that’s very important.”
Rockland County Legislator Ellen Jaffe spoke next. “Our politicians and government officials are fearful. They’re afraid. They don’t know how to deal with this. They’re not sure what the climate is, and how they’re supposed to feel and how they’re supposed to respond. And that’s the general sense I’ve gotten. ‘What do I say? How do I respond? What if somebody asks me a question of what my feelings are?’
“To be fair, I think it involves some of their religious sense. They’re not sure where their particular rabbi or priest stands on this issue. To be fair, I think there is some conflict. There is also the issue of whether or not your constituency and the general climate of your public – how they’re feeling about this and how their response is.
“I think there’s also a sense of not really truly understanding what the issues are and what the circumstances are. And I’m learning more each day, frankly, about the legal issues and the circumstances that we need to understand.
“What Mayor Shields suggested, in terms of being vocal and being present and establishing a presence, is extremely important. Especially when you are fighting the fight for your civil rights.
“I want to acknowledge Jerry Goodman and the Stonewall Democrats, because you have really established a presence and are beginning to have the politicians and the government officials understand that you are here. And who you are on a personal level. That it’s not just someone far away who is making these requests. But it’s someone in their legislative districts, someone who is their neighbor.
“So I would encourage you all to make your voices heard. To reach out to your legislators, to your local officials. To let them know that you have a commitment to being certain that the civil rights of the LGBT community are being honored.”
March 21, 2004:
This weekend, Manhattan’s Jacob K. Javits Convention Center hosted a Same-Sex Wedding Expo within the larger annual GLBT Expo, now in its eleventh year. Several representatives among the 25 to 30 booths of merchants and interest groups in the SSM portion of the Expo talked about their businesses.
Terry Shaw, of Imagine Weddings and Events International:
Q: What’s the nature of your business?
A: We are planners for weddings around the world. We help couples from the very beginning right up through the end to when they’re newly married.
Q: How long have you been doing this?
A: Since January 2000.
Q: Have you seen your business increase recently?
A: Yes. Our business in general has increased. We did 5,000 weddings last year. We do business with most of the major cruise lines. With all the recent attention to same-sex marriages, that business is increasing as well. There’s a lot of interest in that.
Q: Of the 5,000 weddings last year, how many of those were same-sex?
A: Probably only about five percent. Unfortunately.
Q: Do you see same-sex marriages becoming a more substantial portion of your business?
A: Absolutely.
Q: What percentage do you expect it might become?
A: I would hope 50 percent. [He smiles.]
Q: Are there more same-sex couples contacting your business from particular parts of the country, say like Massachusetts?
A: No. That’s interesting. There are those people who are concerned about the legalities of the ceremony. And there are other people who really don’t care. They would like to have a ceremony, no matter what you call it – whether it’s a wedding, a commitment ceremony, a civil union, or whatever – in a place that they want it to be. Whether it be St. Thomas, Bali, or Rio de Janeiro.
Troy McDevitt, of the McDevitt Studio:
Q: What is the nature of your business?
A: I make custom wedding cake toppers that are made to look like the bride and groom. A couple provides me with photos of themselves, and then I use those photos to sculpt cake toppers that look like them.
Q: How long have you been in business?
A: I’ve been doing this since January 2004.
Q: What prompted you to start doing this?
A: I did the cake topper for my wedding to my wife four years ago. Before the ceremony, she said to me, “You’re going to sculpt our cake topper, right?” I’ve been a graphic designer for 12 years, and I always played with sculpting for fun on the side. Because of that, my wife wanted me to do our cake topper. So once I did that, she’s been after me to do this business ever since.
Q: Has your business prospered?
A: It’s been amazing. It’s been phenomenal! You’d think that I just invented, like, bread or sex. [He laughs.] We never anticipated this kind of response.
Q: Can you give numbers?
A: Since January, I’ve only been to four conventions, and this is my first gay convention. So most of my response so far has been from straight couples. But the response at this convention has been just as phenomenal as at those. I tell people that I only have a five spot availability per month. So as five orders come in per month, that’s all I can do. So I tell them to put their orders in as soon as possible to reserve their spot down the road.
Q: Have there been any interesting or humorous requests for cake topper from same-sex couples?
A: Surprisingly, not really. The most odd one – and it’s not really odd at all – is that a couple wanted a likeness of their pet added to their topper. But nothing really kinky or pushing the envelope. I get really excited about the ones that are out of the ordinary. As you see here [pointing to his booth’s display of cake toppers], besides the straight couples, I’ve got gay couples – two men, two women – and an interracial couple. What I want to do is, like, a pregnant-bride one – a real variety of them. Showing anything that’s, quote, taboo. So I hope I get something like an S and M cake topper order here. I’d love that. It would be so much fun.
Michael S. Goldstein, a lawyer doing adoption and family law with Michael S. Goldstein, P.C., in Rye Brook, New York:
Q: How long have you been practicing this kind of law?
A: Twenty-two years. I’m beginning to age myself. [He laughs.]
Q: What is your purpose in being at this Expo today?
A: To educate same-sex couples and singles that they can adopt children.
Q: Have you seen an increase in interest in that recently?
A: Yes, with all the publicity on same-sex marriage and same-sex adoption, we’ve seen a tremendous increase.
Q: Can you give me any figures?
A: In our practice, where we do about 100 adoptions every year, maybe two percent of our business was from same-sex couples six or seven years ago. Now it’s closer to ten percent. It’s gone up tremendously.
Q: Do you perform other family legal services for same-sex couples?
A: We do adoption-related services, such as second-parent adoptions. We also do re-adoptions, where one of the partners in a same-sex couple will go overseas, adopt, and return to this country. Then he or she re-adopts the child under state law here, with his or her partner usually also adopting as a second parent.
March 20, 2004:
In the political backyard of Governor Jeb Bush, the President’s brother, the Rev. Dr. Marni Harmony of the First Unitarian Church of Orlando, Florida, officiated at a public marriage ceremony for same-sex and heterosexual couples at Lake Eola in downtown Orlando yesterday. The ceremony was held after the same-sex couples, all members of the congregation, were denied marriage licenses in the Orange County Clerk’s Office.
“We are engaged in this action today because there are privileges granted to heterosexual married couples that are denied same-sex couples,” Harmony said. “We have some 35 years of experience with welcoming gay, lesbian, bisexual and transgendered people into our congregations and are aware of the many gifts and blessings that same-sex couples bring. We join this witness today because it is important for Orlando to know that there are faith communities that wholeheartedly support the right of same-sex couples to marry,” she continued.
Participants in the public marriage ceremony included heterosexual couples who already had a legally binding civil marriage and renewed their vows and commitment to each other.
The Orlando Sentinel and five television crews covered the event. The photo below shows Dr. Harmony marrying the couples.
The $64,000 question: With Unitarian Universalist ministers being charged with crimes in New York State for having married same-sex couples, will Florida officials also arrest Dr. Harmony? Indeed, how can Bush & Co. resist throwing her in the slammer? Just look at her! Isn’t it obvious what a menace she is to our country? Al Qaeda, step aside on that FBI Most Wanted poster!
March 19, 2004:
Guest Commentary by Dale Carpenter, Associate Professor of Law, University of Minnesota:
A common argument against gay marriage is that marriage is for procreation and gay couples cannot procreate. Let’s call it the procreationist argument. Is it persuasive?
The procreationist argument starts with the indisputable proposition that procreation is indispensable to human survival. It then posits that marriage exists to encourage this indispensable act to occur within a lasting union. The procreationist may concede that marriage has other purposes, for example, providing the married person with a primary caretaker and channeling sexual activity into monogamous commitments. Still, the procreationist maintains, these other purposes serve mainly to help sustain the overarching marital purpose of encouraging procreation and stabilizing family life for the resulting children.
Individual gay persons can procreate, of course, through means such as artificial insemination and surrogacy arrangements. But gay couples, note the procreationists, cannot procreate as a couple. The distinction is important, they say, because parents tend to give better care to biological children than to adopted children. Further, no event helps the durability of a relationship like the birth of the couple’s biological child.
According to the procreationist argument, it is the unique procreative capacity of male-female couples that justifies the unique status of marriage itself. It is the one essential attribute of marriage, supplying its historic male-female definition.
But so what? What are the practical consequences of cutting the marriage-procreation connection? I can think of two possible fears. One fear is that procreation itself would slow down, perhaps below the “replacement rate,” the level at which humans must reproduce in order to stay ahead of deaths. This slowdown would imperil the species. The other fear is that, as the connection between marriage and procreation is loosened, procreation may increasingly occur outside of marriage. Both at once could happen, and both would be bad.
What do we make of this argument? If gay marriage would doom human life on Earth and/or mean significantly more illegitimate children, it should be resisted no matter how much gay couples need it.
But neither of these consequences seems likely. It’s not clear why straight people would stop procreating if gays could marry. The factors driving people to reproduce – the needs for love and to love another, the purported instinct to propagate one’s genes, religious obligations – would still exist if Adam and Steve could marry.
It’s also not clear why gay marriage would drive more straight couples to reproduce outside marriage. The benefits of marital procreation would still be available to them, after all. The problems of non-marital procreation would still be there to discourage it.
But fortunately we do not have to guess at the probability of these cataclysmic consequences because we already have much experience with severing the link between marriage and procreation.
No couple has ever been required to procreate in order to marry. No couple has ever even been required to be able to procreate in order to marry. Sterile couples and old couples can marry. Couples physically able to procreate but who do not want to procreate can get married.
Many married opposite-sex couples already fit into one of these non-procreative categories. They are a larger segment of the population by far than gay married couples ever would be. Yet despite this inherent or explicit rejection of the procreative marital duty, humans continue to procreate and marriage continues to be the normative situs for procreation.
The procreationists have two responses to the non-procreative-couples argument. First, they say laws are made for the general rule, not the exceptions. Most opposite-sex couples can reproduce, but no gay couple can. Second, the failure to require married couples to procreate is only a concession to the impracticality and intrusiveness of imposing a procreation requirement. It is not an abandonment of the procreation principle. It would be unthinkable, on privacy grounds alone, to subject couples to fertility tests as a requirement for marriage. We need no such intrusive test to know gay couples can’t reproduce, the procreationists observe.
The first response is an evasion. Laws often state general rules but provide exceptions where appropriate and just. Gay marriage, like non-procreative straight marriage, is an appropriate and just exception to the procreationists’ rule that marriage exists for procreation.
The second response is equally unavailing. If we were serious about the procreationist project, we could require prospective married couples to sign an affidavit stating they are able to procreate and intend to procreate. If in, say, ten years they had not procreated we could presume they are either unable or unwilling to do so and could dissolve the marriage as unworthy of the unique institution.
That would be neither impractical nor require an invasive fertility test. That no one has proposed it, or anything like it, suggests we do not take the narrow procreationist vision of marriage very seriously. Marriage is not essentially about procreation because procreation is not essential to any marriage.
Further, this second response suggests that the general rule of procreation must bend to the overriding needs and interests of couples unable or unwilling to live by it. If that exception exists for non-procreative straight couples, why not for non-procreative gay couples? If there is an answer to this question, it cannot be found in the procreationist argument.
So the procreationist rule, refined in light of actual lived experience, is this: Nobody is required to procreate in order to marry, except gay couples. It’s a rule made to reach a predetermined conclusion, not for good reasons.
March 18, 2004:
Guest Commentary by Susan S. Silbey, Professor of Sociology and Anthropology, Massachusetts Institute of Technology:
Several prominent observers have characterized the grants of marriage licenses to same-sex couples by San Francisco Mayor Gavin Newsom, New Paltz Mayor Jason West, and others as violations of the rule of law. Yet it’s not clear to me – and I think this is true of most Americans – that the rule of law necessarily means consistent, logical fidelity to some constitutional or statutory text.
Instead, the law is understood as a process of engagement. Indeed, it’s several different forms of engagement. But each one (objective, disinterested, reasoned decision making, or orchestrated competition) is distinguished from both voting and brute “unreasoned” force.
What makes these mayors’ actions any different from those of thousands of corporate officers, accountants, lawyers, and financial analysts who push the boundaries of securities regulations and other laws in order to find out exactly where those boundaries lie for their particular situations? Because the mayors are elected officials, are we to believe that they have less freedom than unelected corporate officers and financiers to press the existing law?
What makes a rule of law is not the substance. Surely, we all know the law can be about anything (including the systematic killing of unwelcome citizens) if the decision making and implementation follow prescribed procedures (understood as disinterested, objective decision making or orchestrated contest in courts).
Rather, the question is this: What are the dimensions or boundaries or limits of authority of mayors according to California or New York or some other state’s law? And is the answer transparent and unambiguous, without debate or contest? Probably not. And if it’s not an absolute yes/no, black/white certainty (and what is?), then it’s a matter of law.
The same-sex marriage struggles in San Francisco, New Paltz, and elsewhere are simply like most other disputes – matters to be reasoned through the courts or decided in legislatures, two alternative legal means of handling disputes. Nothing particularly special there.
Cases about the boundaries of the legal authority of public officials have a long, long history in the United States. What makes this one shocking to some is the subject matter – gay marriage – not the limits of mayoral authority.
If the dispute were about water or sewers, or bio-hazards, no one would be looking with the same concern at what Mayors Newsom, West, and others did. Rather, it would move slowly through the usual processes of dispute resolution. The substance does not make or break the rule of law – unfortunately for those who see morality as dos and don’ts.
March 17, 2004:
There’s a hitch in getting hitched in Massachusetts. Lesbian and gay couples living in other states who want to tie the knot in the Bay State starting May 17th may have yet another legal obstacle in their path.
The New York Times reports today that, “An obscure 1913 law in [Massachusetts] makes void all marriages performed there where the couple is not eligible to be married in their home state. . . . Linda Hutchenrider, president of the Massachusetts Town Clerks Association, said her group was awaiting legal guidance on the meaning of the law and how to enforce it.”
Stay tuned. No one promised gay people that marriage equality was going to be easy or simple.
March 16, 2004:
The Federal Marriage Amendment – George W. Bush’s sop to the Religious Right – is dead on arrival in Congress. The New York Times reports today that 59 percent of Americans favor a constitutional amendment allowing marriage only between a man and a woman. Yet, according to the NYT/CBS News poll, only 38 percent think such an amendment is important enough to change the Constitution. A mere 31 percent believe gay marriage should be part of this year’s election campaign.
Those numbers do not a constitutional amendment make. In 1989, the U.S. Supreme Court, relying on the First Amendment’s protection of free speech, struck down a Texas law that criminalized burning the American flag. In June 1990, the Supreme Court invalidated a similar federal statute. The Gallup Poll reported that, in June 1990, 66 percent of Americans favored a constitutional amendment prohibiting flag burning. Nonetheless, Congress passed no such amendment.
A comparable experience occurred with school prayer. After the Supreme Court in the 1960s restricted prayer in public schools, public opinion polls consistently revealed that at least 60 percent of Americans favored amending the Constitution to permit prayer in public schools. But no such amendment made it through Congress.
Additional NYT/CBS poll results are even more toxic to the FMA than this history. Today 22 percent of Americans back gay marriage, while another 33 percent support permitting gay couples to form civil unions. In short, a clear majority believes that lesbian and gay couples should have the same legal rights as heterosexual couples.
March 14, 2004:
Guest Commentary by David Rhinehart:
My partner and I have been together for 35 years this coming June. If that isn't a marriage, what is? I am 61, he is 63.
I wonder why the government and/or media don’t come out and say this:
"Marriage is a function of the state, and not the church. If a couple wants to get married, they have to get permission from the state (in the form of a license). From that, the state gives the couple certain rights and privileges (regarding taxes, inheritance, insurance, homestead, etc) and also certain responsibilities toward each other. If the couple wants to separate, the two have to go back to the state to get a divorce. The church has nothing to do with it.
“Since the church is where most weddings take place, people associate the church with marriage. However, weddings and marriage are not the same thing."
In 2002, my partner had a stroke. In the ER, the staff wanted to know who I was. I told them that we were domestic partners for 33 years. They could have thrown me out since I am not a legal relative, but they accepted me as his "spouse."
I also had some problems with insurance companies. Fortunately, my partner and I had set up (just the prior August) living wills, health care surrogates, powers of attorney, etc. So I was able to take over just as a legal spouse could have.
But if we hadn’t been so well prepared, I don’t know what would have happened.
The law should protect everyone in such unexpected emergencies – and marriage equality helps achieve that goal.
March 11, 2004:
Guest Commentary by Andrew Miller, former news editor of Outweek magazine and an organizer of NYMarriageNOW.org:
Victor Robles is the person to see in Manhattan if you need a marriage license. Except his office hasn’t been putting out for our community.
Appointed by the City Council to a six-year term, Victor Robles, Clerk of the City of New York, has the kind of job you dream about: he has no boss, and he can’t really be fired. According to the City Charter, the Council has no power to tell him what to do. Neither does the mayor. Mr. Robles knows this. Here’s a quote from the document his office gave all the gay and lesbian couples who applied for marriage licenses at his office last Thursday:
“Nothing in law authorizes the City Council or the Mayor to direct the City Clerk in the performance of his or her duties under the Domestic Relations Law.”
For all his troubles, he collects $153,239 annually. Jobs don’t get much better than this.
Presumably, no one can tell him what not to do, either. So no one knows why Mr. Robles, a Democrat, won’t let us get married. Some say it’s a devotion to the mayor – a heteropolitical marriage, if you will. Some say it’s his close ties to the man who appointed him: former Council Speaker Peter Vallone, who just can’t stand it when the lesbian and gay community makes any progress. Others say it is Robles’ devout Catholicism. Still others say it’s the persistence of those nagging rumors that resulted from a 1996 Daily News story about complaints of sexual harassment from a male employee – which never resulted in any legal action.
Frankly, I don’t much care. The same-sex marriage train is a-coming to New York City. My evidence? There were 1,000 angry demonstrators down at City Hall last Thursday. In the rain. At eight in the morning. On five days’ notice. That equals one march on Washington. And then there’s Lambda Legal’s new lawsuit against Robles. And all those same-sex marriages coming home from Massachusetts starting in May: they’ll be legal here in New York State – even Attorney General Eliot Spitzer’s otherwise cautious opinion says so.
Victor Robles should get on board that train. He should stand up for what he knows is right, and begin issuing marriage licenses to same-sex couples immediately. It’s a win-win situation. We get married. He goes into the pantheon of heroes of the civil rights movement, along with Mayor Gavin Newsom of San Francisco, and Mayor Jason West of New Paltz.
Despite all his strutting around Albany, Attorney General Spitzer’s recent prohibition against issuing marriage licenses to same-sex couples is merely an opinion. As much as he wants to be governor, Spitzer still doesn’t get to make laws by fiat, a fact that went over the heads of most journalists who reported the story. Just because Spitzer said “don’t” doesn’t mean anyone has to pay any attention. New York’s marriage laws are gender-neutral, and our Constitution’s Equal Protection Clause covers same-sex couples. Robles knows this.
Mr. Robles also knows that despite all the threats, issuing a marriage license won’t get him in a lick of trouble. That’s because Manhattan’s district attorney, Robert Morgenthau, has promised not to press charges against him if he chooses to do so, despite Spitzer’s politicking. So Robles is really out of excuses.
We all saw how fast Mike Bloomberg freaked out after our demonstration. On Thursday morning, he was the (ever-unconvincing) tough-talking Republican, refusing to let his personal opinion be known, telling the queers to get out of his hair and stop embarrassing him in front of his Republican National Committee pals, exiling us to Albany if we wanted to affect serious change. (Apparently he’s too politically impotent to do anything himself).
But that very night, he was mewling to the National Lesbian and Gay Journalists Association about how, in truth, he really supported our issue, really believed in our right to get married, and would work to get the state laws changed. Then he denied he’d said it. Then his press secretary found out it had been taped, and copped to it. Then he denied it again. Then he moderated the statement. Such an ugly little spectacle.
Eventually, they’re going to get tired of asking. Soon they might decide to sit there and wait until you give them one. They might need to be escorted out. They might go limp and have to be carried out. If arrested, some might refuse to cooperate with the whole oppressive system and fill the jails. Adam and Steve Doe. Sally and Eve Roe. Members of the clergy in this city are already talking about refusing to perform weddings for anyone until gay and lesbian couples can get legally married, too. You can stop it all now, Victor Robles.
Let us get married.
To apply for a marriage license, visit Victor Robles’ office at the Municipal Building, 1 Centre Street, 2nd floor just across the street from City Hall in Manhattan. For locations in boroughs outside Manhattan, visit http://nycmarriagebureau.com.
March 9, 2004:
From the front page of the New York Times:
Headline: “Gay and Republican, But Not Necessarily Disloyal to President.”
“President Bush’s support for the gay-marriage amendment drew expressions of dismay and betrayal from many of his gay and lesbian supporters. . . . But as the debate over same-sex marriage heats up, some gay Republicans say Mr. Bush may still get their vote in November.”
Bush’s endorsement of the Federal Marriage Amendment was the American constitutional equivalent of Krystal Nacht in Nazi Germany. In that November 1938 “night of broken glass,” Hitler’s strong-arm group, the Braun Shirts, demolished Jewish synagogues, businesses, and homes throughout the country.
How much more do lesbian and gay Republicans in the United States need to see the writing on the wall today? Are they waiting for Bush’s approval of Christian Right blueprints for the juridical counterparts to Auschwitz and Buchenwald?
March 5, 2004:
The caravan left the Long Island Gay and Lesbian Youth (LIGALY) headquarters on Park Avenue in Bay Shore promptly at 9:00 a.m. The organization’s blue-and-white bus lead the convoy, brimming with same-sex couples eagerly in search of marriage licenses. More than 100 cars, hazard lights flashing, snaked behind the bus. Vanity plates such as “Out Guy” and rainbows flags, large and small, flapping in the wind alerted bewildered drivers on busy Sunrise Highway that this was no funeral procession. Indeed, motorists and truck drivers whizzed by, honked their horns, and gave thumbs up.
The first stop in the day-long journey to find town clerks willing to issue licenses was Babylon Town Hall, about 35 miles and several light-years away from New York City Hall. Supporters shouted, “We are people! We are free! We deserve equality!” Declaring “Let’s go get married!” couples entered the building in an orderly file, two by two, hand in hand, heading for the office of Town Clerk Janice E. Tinsley-Colbert.
Sheree Jeanes, 33, and Bonnie Reich, 42, of Huntington reached Ms. Tinsley-Colbert’s office first. The clerk informed them that, following the advice of New York State Attorney General Eliot Spitzer, her office would not issue marriage licenses to same-sex couples. She distributed a one-page statement quoting Spitzer.
In the hallway, Jeanes and Reich said, “We’re disappointed. We want the same rights as any other couple, and we feel that we deserve that. We qualify in the same way that any different-sex couple would. We’d like to get married. We’ve been together six years and have talked about starting a family. And we want all the full protections that the law of this country would allow us, as it would any other citizens. We think that’s just the right thing to do. We hope that New York State comes to see it the same way. From what we understand, there’s no reason that we shouldn’t be able to get married.”
A reporter asked, “Are you surprised at how quickly this issue rose to the forefront?”
“It’s wonderful. Clearly it’s something that a lot of people care about. Look at how many families are affected in one way or another. We’re daughters and sons, fathers, mothers, aunts, uncles, grandparents. It’s an issue that touches every family.”
When asked whether they’d join a lawsuit, they said they would. “This is a process that we have to take in this country. The Constitution is a wonderful thing.”
Other couples poured into the clerk’s office. One among the many were LIGALY’s Executive Director and Director of Education, Training and Policy, David Kilmnick and Robert Vitelli. They carried a sign “David Loves Robert, Centereach, LI, NY. Together 3 years. Don’t deny us our right to marry.”
“Who are the bride and groom?” a clerk asked the two men. “We are,” Kilmnick replied, with birth certificates in hand and $40 cash for the application fee. “Will we get an application?” he inquired. “Absolutely not,” answered the clerk.
When asked in the hallway how they felt, Kilmnick replied, “I’m pretty angry and disappointed. We weren’t even given a piece of paper to fill out. That’s how low our state thinks of us right now. You know, tomorrow, we should stop paying our taxes. It’s absolutely appalling to me that Robert and I are committed to being together for life and cannot have the same protections as heterosexual citizens.”
Kilmnick also said they’d join a class-action lawsuit. “What we’re talking about is our civil rights. Right now, we can’t file tax returns jointly, there are no hospital visitation rights, no family medical leave – so many things that people just take for granted and don’t realize are afforded with marriage.
“And what’s the big deal if Robert and I tie the knot? Other people just care that we pay our taxes. That’s it. How will our marriage hurt anybody? The world will go on; it won’t crumble. The deficit in this country won’t get higher because we’re married. We’re not going to continue fighting in Iraq because we got married. The Yankees have still got ARod. [He smiles.] The world will only become stronger as more gay and lesbian people commit to building stable families.”
When a reporter asked whether there was a comparison between today’s events and the civil rights movement, Kilmnick continued, “When Rosa Parks walked to the front of the bus in 1956, someone said to her, ‘Hey, that’s illegal! You go to the back of the bus.’ And that’s what they’re doing to us today. When we walked into the Town Clerk’s office trying to get our marriage license, they said to us, ‘No, it’s illegal. You go to the back.’ Just like Rosa Parks, we are not going to go back. We’re going to stay in the front of the bus until we get our licenses.” Kilmnick might have noted the irony that Babylon Town Clerk Tinsley-Colbert is an African-American woman.
The tumult in the Clerk’s Office reached an exasperating juncture when Billiam van Roestenberg – whose New Paltz “shotgun wedding” the New York Times featured on the front page of its Metro Section of March 3 – fired angry question after angry question at the beleaguered clerks. A lesbian mom shepherding two rambunctious toddlers in the hallway wondered aloud, “I thought this was supposed to be non-confrontational. Who elected this prima donna as our leader?” “No one. He’s self-anointed,” a wag quipped.
This assessment was confirmed later. In the hallway, van Roestenberg announced to the world in a bellow, “I am going to sue New York State!” The use of the first person plural, rather than the singular, apparently never crossed his mind.
March 4, 2004:
NYMarriageNOW.org, a group formed in less than a week (see February 27 below), orchestrated a demonstration this morning while same-sex couples applied for marriage licenses at the City Clerk’s office across the street from City Hall. More than fifty pairs formed a line that wound through the Municipal Building’s arcade. Between 750 and 1,000 protestors turned out in inclement weather to voice anger at Mayor Michael Bloomberg’s resolute refusal to support marriage equality for the City’s lesbian and gay citizens.
Alan Van Capelle, of the Empire State Pride Agenda, noted in front of the couples line, “These folks were told yesterday that if they showed up, then they would be denied. But they came out in the rain and cold with the people they fell in love with, asking to be recognized just like everybody else in the State of New York.”
To no one’s surprise, only opposite-sex couples in the line received marriage licenses. Same-sex pairs were refused even application forms for licenses. Instead, they received letters, signed by City Clerk Victor Robles, stating “Thank you for visiting the Office of the City Clerk to apply for a marriage license. We are, however, unable to accept your request. New York State law does not authorize this office to grant marriage licenses to same-sex couples.” A dense packet of legal opinions by New York State Attorney General Eliot Spitzer and New York City Corporation Counsel Michael A. Cordozo accompanied the Clerk’s letter.
As the number of demonstrators grew between 8:00 and 9:30, the police were a well lubricated machine that expanded the size of the cordoned area to accommodate the ever-increasing crowd. Teaching at John Jay College of Criminal Justice of the City University of New York for a decade, I’ve had many police officers in class. Indeed, I look forward to cops enrolling in my courses because they tend to be more serious and committed to education than other undergraduates at the school. Nonetheless, I gained renewed confidence in the force through observing at first hand the efficiency and professionalism with which the police worked the demonstration.
Yet the irony was extreme. Thirty-five years ago, and no more than twenty blocks away from this scene, it was a police raid on a gay bar that triggered the legendary Stonewall Rebellion. And in turn, Stonewall lead to this sequel.
March 2, 2004:
A student came up after class (“The Law and Politics of Sexual Orientation”) to tell me a story about her mother, Mary (a pseudonym). Born in Jamaica (the island, not the community in New York’s Borough of Queens), Mary grew up in a devoutly Roman Catholic family that was homophobic. As an adult, Mary mirrored her family’s attitudes towards homosexuals.
A few months ago, Mary received a wedding invitation from Susan (another pseudonym), whom Mary had known for many years and considered a friend. The invitation announced that Susan’s betrothed was – another woman! Mary was shocked, having no prior indication that Susan was a lesbian. My student said her mother struggled for weeks. What to do? Attend the wedding or not?
In the end, Mary went to the service, threw rice at the happy couple, and now supports same-sex marriage.
The moral? Lesbians and gay men: Olly, olly, oxen free! Come out, come out, wherever you are!
Read the February 2004 "Notes from the Front Lines"